UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A    TREATISE 


"  n 


AND   RELATED   TOPICS 


WILLIAM    B.    CUNNINGHAM, 


OF  THE  CHICAGO   BAR. 


SECOND    EDITION. 


CHICAGO: 

T.  H.  FLOOD   &   COMPANY, 

Law  Book  Publishers. 

1895. 


Kntered  according  to  Act  of  Congress,  in  the   year  1895, 

By  WILLIAM  B.  CUNNINGHAM, 

In  the  office  of  the  Librarian  of  Congress  at  Washington. 


T 

C9IW 

WIS 


Printed  and  Bound 

BY 

DAKIUS  D.  THORP, 
Lansing,  Mich. 


PREFACE  TO  THE  SECOND  EDITION. 


Finding  so  many  new  cases  and  new  rulings- of  the 
courts  on  the  subject  of  Forcible  Entry  and  Detainer, 
it  seems  but  just  to  those  wlm  received  the  former 
edition  of  this  work  so  kindly,  and  only  just  to  myself, 
that  all  new  cases  should  be  collated  and  the  work 
brought  fully   up  to  the  present  time. 

While  the  original  intention  was  to  prepare  a 
treatise  on  the  law  of  this  State,  yet,  to  state  the 
general  principles  of  the  law,  which  obtain  in  all  of 
the  states'  it  was  necessary  to  make  citations,  found 
in  point,  from  the  courts  throughout  the  United  kStates. 
This  also  required  that  the  work  should  be  much 
enlarged,  consuming  much  time  in  its  preparation,  and 
I  hope  and  believe  that  it  will  prove  to  be  accurate, 
a  time  saver  and  useful. 

WILLIAM   B.  CUNNINGHAM. 
Chicago,    1805. 


r-  yi0  Ids, 


TABLE    OF   CONTENTS. 


CHAPTER    T. 

THE   LAW   OF   THE    LEASE. 

Section     1.  Definition. 

2.  Written  leases. 

;!.  Signature  and  seal. 

4.  Implied  leases. 

5.  Parol  leases. 

6.  Parol  agreement  with  the  lease. 

7.  Fraud  in  leases. 

8.  What  may  be  leased. 

9.  Consideration. 

10.  Agreement  for  a  lease. 

11.  Present  demise. 

12.  Time. 

Kinds  of  Tenancy. 

13.  Tenancy  at  will. 

14.  Tenancy  at  sufferance* 

15.  Tenancy  by  the  month. 
1C.  Tenancy  by  the  year. 

17.  Tenancy  for  life. 

18.  Covenants. 

19.  Express  covenants. 

20.  Implied  covenants. 

21.  Surrender  of  leases. 

22.  Rooms  and  lodgings. 
2o.  Who  are  lodgers. 

24.  Who  are  tenants. 

25.  Lien  on  baggage  for  board. 
2(5.  Rights  of  lodgers. 

27.  Landlord  defined. 


vi  table  of  contents. 

Forfeiture  of  Leases. 

Section  28.  Nature  of  forfeitures. 

29.  Forfeitures  at  common  law. 

30.  Under  the  statutes. 
81.   Waiver  of  forfeiture. 

Attornment. 

32.  Definition. 

33.  Implied  attornment. 


CHAPTER    II. 

ASSIGNMENT   OF   THE    LEASE. 

Section  34.  Leases  may  be  assigned. 

35.  Accruing  rent. 

36.  When  assignment  releases  from  rent. 

37.  Lease  assigned  contrary  to  its  terms. 

38.  Voidable— Not  void  if  terms  disregarded. 

39.  Sub-tenants  and  their  rights. 

40.  Termination  of  sub-lease. 

41.  Leases  by  corporations. 

42.  Appurtenances. 

43.  Partnership  leases. 


CHAPTER    III. 

•    FORCIBLE    ENTRY    AND   DETAINER. 

SECTION  44.   The  Illinois  statute. 

45.  The  purpose  of  the  action  and  when  it  will   lie 

46.  Forcible  entry  forbidden. 

47.  Definition. 

48.  Nature  of  the  action. 

49.  The  remedy. 

50.  Two  wrongs  in  one  name 


TABLE    OF    CONTENTS.  Vll 

CHAPTER   IV. 

WHEN  THE   ACTION   WILE   LIE. 

Second. — 

Section  51.  Statutory  provisions. 

52.  What  force  necessary. 

53.  When  the  owner  may  enter  peaceably. 

54.  Peaceable  entry. defined. 

55.  Who  liable  in  tbis  action. 

56.  What  constitutes  forcible  entry. 

57.  Detention  after  demand  unlawful. 

58.  Actual  force  not  necessary. 

Th hid.—  For  Entry  Upon  Vacant  Lands. 

59.  The  action  will  lie  for  entry  upon  vacant  lands. 

60.  Owner  deemed  to  have  possession. 

Fourth.— Against  a  Tenant  Holding  Over. 

61.  The  fourth  cause  of  action. 

62.  Possession  by  fraud. 
(i:5.  Sub-tenants. 

64.  Holding  over  after  term  expires. 

65.  Possession  under  lessee. 

66.  What  complaint  must  show. 

67.  Conclusive  possession. 

Fifth.— Against  a  Purchaser  who  FaiLS  to  Com- 
ply with  the  Contract  of  Purchase. 

68.  The  fifth  statutory  cause  of  action. 

69.  Who  may  sue  under  this  clause. 

70.  What  necessary  to  give  jurisdiction. 

71.  Growing  crops. 

Sixth. — Where  the  Premises  Have  Been  Sold 
at  Judicial  Sale. 

72.  The  sixth  cause  of  action.  • 

73.  When  right  first  given. 

74.  Detention  of  premises  after  sale. 

75.  Against  whom  suit  brought. 


viil  TABLE    OF    CONTENTS. 

Section  7(i.  Demand  necessary. 

77.  The  proof  necessary 

78.  Judicial  sales. 

79.  What  steps  necessary  to  recover  under  this  clause. 


CHAPTER    Vr. 

WHO   MAY  MAINTAIN   THE   ACTION. 

Section  80.  The  only  issue  to  be  tried. 

81.  What  possession  necessary. 

82.  Possession  of  timber  lands. 

83.  Who  the  proper  plaintiff. 

84.  Cases  in  illustration. 

85.  Growth  of  the  action  under  the  statutes. 

86.  Particular  cases  stated. 

87.  Right  of  exclusive  possession  requisite. 

CHAPTER   VI. 

AGAINST   WHOM   THE   ACTION    WILL   LIE. 

Section  88.  The  general  rule. 

89.  What  persons  included  as  defendants. 

90.  When  action  will  not  lie. 

91.  Joint  occupants — Joint  tenants. 

■ 

CHAPTER    VII. 
POSSESSION. 

SECTION  92.  The  kind  of  possession  necessary  for  plaintiff 

93.  Pedis  possessio — unnecessary. 

94.  Constructive  possession. 

95.  Extent  of  possession. 

96.  Judgment  for  part  only. 

97.  The  demand  of  possession. 

98.  Demand  in  writing. 

99.  The  service  of  demand. 


TABLE    OK    CONTENTS.  IX 


CHAPTER    VIII. 

TERMINATION  OF  THE  TENANCY  AND  HEREIN  OF  NOTICE 
TO   QUIT  AND   DEMAND. 

Section  100.  Possession  of  tenants. 

101.  Notice — How  signed. 

102.  Notice — How  served. 
108.  Agency — How  proven. 

104.  Parol  leasing  for  more  than  one  year. 

105.  Delivery  of  key  and  the  acceptance  of  premises 

106.  Statutes  of  1865  construed. 

107.  How  demand  should  be  made. 

108.  Yearly  tenancy — Notice. 

109.  When  demand  made. 

110.  When  lease  expires. 


CHAPTER   IX. 

JURISDICTION. 

SECTION   111.  Jurisdiction  originally. 

112.  What   necessary  to  give  jurisdiction. 

113.  The  venue. 

114.  In  justice  courts. 

115.  In  circuit  courts. 

116.  In  various  states. 


CHAPTER    X. 

THE   COMPLAINT. 

Section  117.  Complaint  heretofore  and  at  this  time. 

118.  Summons. 

119.  What  the  complaint  should  contain. 

120.  What  description  of  premises  required. 


X  TABLE    OF    CONTENTS. 

CHAPTER   XL 

PLEADINGS— TRIAL— PROCEEDINGS. 

SECTION   121.  Statutory  provisions. 

122.  Pleadings. 

123.  Amendments. 

124.  Plea  of  not  guilty. 

125.  Time  to  amend. 

126.  Questions  of  practice. 

127.  Whom  affected  by  judgment. 

128.  Defendant's  conclusive  possession. 

129.  Mistake  in  date  of  complaint. 

130.  Judgments  where  several  holdings. 
181.  Pursuing  two  remedies  at  one  time. 

CHAPTER   XII. 

THE  TENANT  CAN  NOT  DISPUTE  THE  LANDLORD'S  TITLE 

Section  132.  Tenant's  possession  that  of  the  landlord. 

133.  Jury  can  not  consider  title. 

134.  Tenant  must  restore  possession  to  lessor. 

135.  May  show  that  lessor's  title  has  terminated. 

136.  What  the  tenant  may  show. 

137.  Deeds  may  be  read  to  show  boundaries. 

138.  The  true  meaning  of  the  law. 

139.  Can  show  source  of  title. 

140.  Mistake,  artifice,  and  fraud. 

141.  The  settled  rule. 

CHAPTER    XIII. 

EVIDENCE. 

SECTION  142.  The  proof  necessary  to  support  the  action  of  forcible 
entry  aud  detainer. 


TABLE    OF    CONTENTS.  XI 

Section  143.  The  proof  in  case  of  forcible  entry. 

144.  Wrongful  withholding. 

145.  In  case  of  unoccupied  lands. 

146.  Holding  over  after  termination  of  lease. 

147.  Holding  under  contract  of  purchase. 

148.  Holding  after  judgment  of  ouster. 

149.  Defective   description   can   not   be  supplied    by  parol 

proof. 

CHAPTER    XIV. 

THE  JUDGMENT  IN   FORCIBLE  ENTRY   AND   DETAINER. 

Section  150.  Statutory  provisions. 

151.  Judgment  unauthorized  if  description  indefinite. 

152.  Judgment  conclusive  as  to  right  of  possession. 

153.  Circuit   court  can  render   judgment   on  dismissal   of 

appeal. 

154.  The  effect  of    a   judgment  in   forcible  entry  and    de- 

tainer. 

155.  Conclusive  only  as  to  matters  legally  determined. 

156.  Judgments  by  confession  were  heretofore  sustained. 

157.  They  are  now  invalid.  ' 

158.  Judgments  confessed  only  for  bona  fide  debt  due. 

159.  Against  whom  judgments  may  be  entered. 

160.  Judgments  as  to  sub-tenants. 

161.  Judgments  as  regards  the  wife  of  defendant. 

(II AFTER    XV. 

RESTITUTION. 

Section  162.  Definition  of  term. 

163    Restitution — Concurrent  remedies. 

164.  Jury  must  sign  verdict. 

165.  Duty  of  officer  in  executing  the  writ. 

166.  Unknown  sub-tenants. 

167    Circuit  court   on  appeal   may  remand  case  to  justice 
to  issue  writ. 


X\l  TABLE    OF    CONTENTS. 

CHAPTER    XVI. 

THE   TENANT'S   REMEDIES. 

SECTION  1(58.  Tenant  may  abandon  premises  for  landlord's  fault,. 

169.  May  sue  for  breach  of  contract. 

170.  No   relief  against  rent  except   by  stipulation   in    the 

lease. 

171.  Defenses  available  to  the  tenant. 

172.  Test  questions  for  trial. 

173.  Tenant's  right  to  abandon  premises. 

CHAPTER   XVII. 

REPAIRS. 

Section  174.  Time  when  repairs  made. 

175.  The  common  law  rule  as  to  repairs. 

176.  The  landlord's  duties  regarding  repairs. 

177.  What  repairs  made  by  tenant. 

178.  Damages  for  personal  injury  on  account  of  premises 

being  dangerous. 
'   179.  Damages  by  water. 

180.  Defective  plumbing  and  the  results  of   sewer  gas. 

Use  and  Occupation. 

181.  When  tenants  liable  for  use  and  occupation. 

182.  Actions  for  rent  and  for  use  and  occupation. 

183.  Set-off  and  recoupment. 
184    Recoupment  against  rent. 

185.  Set-off— When  allowed. 

186.  Damages. 

187.  Damages  for  failing  to  repair. 

188.  Re-entry  by  landlord. 

CHAPTER    XVIII. 

FIXTURES. 

Section   189.   Definition. 

190.  Landlord's  fixtures. 


TABLE    OF    CONTENTS.  XU1 


SECTION   191.  Tenant's  fixtures. 

192.  Removing  fixtures. 

193.  The  intention  as  to  fixtures. 

194.  Cases  in  illustration. 


CHAPTER   XIX. 

DISTRESS   FOR  RENT. 

Section  195.  Rent  defined. 

196.  The  warrant  for  distress. 

197.  Proceedings  for  distress. 

198.  Distress  warrant  subject  to  lien  of  execution  already 

levied. 

199.  Interest  of  chattel  mortgagee. 

200.  What  property  subject  to  levy. 

201.  Amount  claimed  by  landlord  limits  his  recovery. 

202.  The  office  of  the  warrant. 

203.  The  landlord's  lien  on  crops. 

204.  Trial  in  distress  cases. 

205.  Cases  in  illustration. 

206.  Practice  in  distress-for-rent  cases. 


CHAPTER    XX. 

EVICTION. 

Section  207.  Definition. 

208.  Actual  eviction. 

209.  Constructive  eviction. 

210.  Cases  in  illustration. 

211.  Effect  and  consequences  of  eviction. 

212.  Taking  from  tenant  part  of  premises. 

213.  To  discharge  the  tenant  from  rent  he  must  abandon 

the  premises. 

214.  Particular  cases  stated. 

215.  Threats  by  landlord  against  tenant. 

216.  Suspension  of  rent. 

217.  Damages  for  eviction. 


XIV  TABLE    OF    CONTENTS. 

CHAPTER   XXI. 

APPEALS  AND  APPEAL  BONDS. 

SECTION  218.  Statutory  provisions  as  to  bonds. 

219.  Appeal  bond  indispensable. 

220.  Bond— By  whom  approved. 

221.  What  gives  the  upper  court  jurisdiction. 

222.  The  penalty  of  the  bond. 

223.  Conditions  of  the  appeal  bond. 

224.  What  the  bond  should  be. 

225.  Bonds  in  larger  amount  may  be  required. 

226.  Sureties  on  appeal  bonds. 

227.  Bonds  must  be  in  writing. 

228.  What  will  discharge  the  surety. 

229.  Co-sureties. 

230.  The  defense  of  the  sureties. 


CHAPTER    XXII. 

FORMS. 

Demand  for  possession. 

Notice  to  quit  by  an  agent. 

Demand  by  an  attorney. 

Notice  to  quit  by  the  owner. 

Notice  to  terminate  weekly  tenancy. 

Ten  days'  notice  to  quit  for  default. 

Another  form  of  notice  to  quit. 

Notice  to  quit  for  landlord  by  the  agent. 

Landlord's  five  day  notice. 

Sixty  day  notice  to  terminate  tenancy. 

Another  form  of  the  same. 

Sixty  day  notice  to  be  served  by  an  agent. 

Thirty  day  notice  to  terminate  a  tenancy  from  month  to  month. 

A  demand  for  possession  disclosing  the  agent. 

Written  authority  to  agent  or  attorney. 

Written  authority  to  attorney  to  sue,  etc. 


TABLE    OF    CONTENTS. 

Complaint  in  forcible  entry  and  detainer  in  Illinois. 

Summons  in  forcible  entry  and  detainer. 

Appeal  bond  in  forcible  entry  and  detainer. 

Writ  of  restitution. 

Agreement  for  a  lease. 

Agreement  not  to  obstruct  ligbts. 

To  renew  a  lease. 

Agreement  of  surety  in  lease. 

Agreement  to  let  furnished  apartments. 

Form  of  guarantee  of  rent,  etc. 

Assignment  and  acceptance  of  lease. 

Assignment  of  lease. 

Consent  to  assignment. 

Assignment  by  lessor. 

New  lease  with  full  powers. 

Short  country  lease. 

Skeleton  lease. 


i.syaolc 


CASES   CITED. 


A 

PA  UK 

Abbott  v.  Kruse 37  111.  App.  549 138,  139 

Abbott's  Law  Dictionary 64 

Ackland  v.  Sutley . ..9  Ad.  and  El.  879 132 

Adlard  v.  Muldoon 45  111.  193 21 

Allen  v.  Tobias  et  al 77  111.  1G9 95,  174 

Ahvood  v.  Mansfield.... 33  111.  452 166,  232 

Araer.  &  Eng.  Encye.  of  Law Page  466 266 

American  Decisions,  vol.  15 Page  64 186 

Anderson  et  al.  v.  The  Chicago  M.  & 

F.  Ins.  Co 21  111.  601 253 

Anderson's  Dictionary  of   Law 2  Bl.  Com.  317... 2 

Ankeny  v.  Pierce __._1  111.  262 164,  254 

Arch.  Laudlord  and  Tenant Page  66 121 

Arms  v.  Burt 1  Vt.  306 16 

Armson  v.  Forsythe... .40111.49 270 

Asay  v.  Sparr 26  III.  115 236 

Atkins  v.  Byrnes.. 71  111.  326.... 38,  230 

Atkinson  v.  Lester  et  al 2  111.  407 

69,  75,  100,  143,  148,  175 

B 

Bailey  v.  Moore  et  al 21  111.    165 39 

Baker  v.  Cooper 51  Me.  388 102 

Baker  v.  Hays 28  111.  387 61,  97,  98 

Ball  v.  Chad  wick  et  al.. 46  111.  28 78,103 

Barlow  v.   Burns 40    Cal.  351 76 

Bartlett  v.  Hitchcock 10  111.  App.  87... 87 

Bainter  v.  Lawson 24  111.  App.  634. 233 

Ball' v.  Peck 43  111.  482 

.79,  116,  120,  122,  124,  134 
B  x  v  i  i 


Will  CASKS    CITED. 

PAGE 

Ballance    v.  Curtenius  el  al 3  (iil.  111.  44!) _•___ 

72,  138.  14(5,  154,  157,  140 

Baxley  v.  Collins 4  Blackf.  (Ind.)  320... .  137 

Baxter  v.  West 5  Daly   K.  4(50 31 

Beard  v.  Bricker 2  Swan   (Tenn.),  50...  84 

Becar  v.  Flues 64  N.  Y.  518 9 

Beel  v.  Pierce 11  111.  92 13G,  13T,  145,  147 

Beezley  v.  Burgett -.15  la.  192 '.. 102 

Bennett  v.  Bittle 4  Rawle,  (Pa.)  399 249" 

Benjamin   v.  Heeney  et  al 51  111.  492 206 

Beidler,  et  al.    v.  Fish 14  111.  App.  29.. 3 

Bell  v.  Brulm.... 30  111.  App.  300.42.122.30,191 

Bells  v.  Anderson 38  111.  App.  128 116- 

Berger  v.  Hoerner 36  111.  App.  360 227 

Berrington  v.  Casey ...78  111.  317 5,23 

Bigler  v.  Furman  et  al 58  Barbour.  555 167 

Billings   v.  Chapin... 2  111.  App.  555 137,  138 

Billings  v.  Lafferty.... - -31  111.  318 264,  265 

Bingham  on  Real  Estate,  557 228 

Birdsall  v.  Phillips.... ..17  Wend.  R.  472.  464.  31 

Bishop  v.  Elliott... 11  Ex.  R.   113 225 

Bissell  v.  Lloyd  et  al.... 100  111.  214... 197.202,205 

Blackstone  Com.  vol.  2,  41 228 

Blake  v.  Ranous 25  111.  App.  486 210 

Blanchard  et  al.  v.  Pratt.. ..37  111.  App.  243. 162 

Blake  v.  Kurrus .41  111.  App.  562 18 

Bliss  v.  Gardner  et  al ....2  111.  App.  422 41.  43 

Black  on  Judgments,  663 187 

Block  v.  Ebner . 54  Ind.  544 197 

Bloom   v.  Goodner 1  111.  63.. ...51.69.  ISM 

B.  &  O.  &  C.  R.  R.  Co.  v.  111.  Cent. 

R.  R.   Co 137  111.   9 13,200 

Borden  v.  Croak. 33  111.  App.  389. . 237 

Borman  v.  Sandgren 37  111.  App.  160 205 

Boston  R.  R.  Co.  v.  Ripley 13  Allen,  (Mass.)  241...  249 

Bouv.  Law  Die 2,28,  67 

Bowlby  v.  Robinson  et  al 45  111.  App.  531 261 

Bowman  v.  Mehring 34  111.  App.  389 156 

Boyd  etal.  v.  Fraternity  Hall  Assn.. .16  111.    App.  574 148 


CASKS    CITED.  XIX 

PAGE 

Boyd  v.  Kocher. ...31  111.  295 264,  265 

Bradley  v.  West 60  Mo.  59 113 

Bradley  v.  West 68  Mo.  69 185 

Brackensieck  v.  Vahle  et  al 48  111.  App.  312 91,  194 

Breher   v.  Reese 17  111.  App.    545 10" 

Brooks  v.  Bruyn 18  111.  539 

...76,  95,  97  166,  177,  180,  174 

Brown  v.  Smith .83  111.    291 17,  18,  192 

Brown  et  al.  v.  Smith  et  al 24  111.  197 _  236 

Brownell  et  al.  v.  Welch ..91  111.    523 IS 

Brush  v.   Fowler.... 36  111.  53. ..77,  90,  190,  218,  217 

Bryton  v.  Marston 33  111.    App.  211 22 

Bull  v.  Griswold 19   111.   631 8 

Burns  et  al.  v.  Nash. 23  111.  App.  552...  187.  140,  189 

Burt   v.  French ._..7()    111.  254 3:5 


Cairo,    etc..    R.    R.    Co.    v.    Wiggins 

Ferry  Co 82  111.    230 145,  146 

Campbell  v.  Shields 11  Howerny,  165 249 

Carroll  v.  City  of  Jacksonville. 2  Brad.  481 154 

Carroll  v.  Ballance 26  III.  9.. 50 

Carson  et  al.  v.  Crigler 9  111.  App.  83 43 

Carson  et   al.    v.  Crigler 9  111.  App.  83 44,  110,  187 

Carter  v.  Marshall 72  111.  609 170 

Casey  v.  Mc Falls .     3  Sheed.  115 187 

Casselberry  v.  Forguer. .... 27  111.    170 80,  106 

Cazzalo  v.  Chambers  et  al 73  111.  75 22,  23,  49 

Center  v.  Gibner -..71    111.  557 155,263 

Chadwick  v.  Parker ...44  111.  326 32,  128 

Chapman  et  al.  v.  Kirby.. 49  111.  24... ....32,  34,  35 

Chapman  v.  Wright ...20  111.  120... 33 

Chapman  v.  McGrew 20  111.  101 12.  45 

Cheney  v.  Bonnell .58  111.  268 34,  35 

Cheney  v.  Bonnell ..58  111.  268 254 

Chicago  Legal   News  Co.  v.  Browne 

et  al ..5  111.  App.  250 218 


XX  OASES    CITED. 


Chicago  B.  &  Q.  K.  R.  v.  The  Presi- 
dent, etc.,  of  Knox  College 34  111.  202. 129 

Chicago    Attachment    Co.    v.    Davis 

Sewing  Machine  Co 142  111.   171. 44 

Church  v.Brown... 15  Ves.  265 41 

Churchward  v .  Ford 2  H.  &  N.  It   445-450 . .  31 

City  of  Bloomington  et  al.  v.  Brophy.32  111.    App.  400 69,  165 

City  of  Chicago  v.  Garrity  et  al 7  111.  App.  474 50 

City  of  Peoria  v.  Simpson 110  111.  294... 208 

Clark  v.  Clark ...58  111.527 212 

Clark  v.  Baker. 44  111.    349 .72,74,77,  105 

Clark  v.   Ford._ 41  111.  App.   199 219 

Clark  v.  Jones 1  Denio  R.  516 36 

Clason  v.  Bailey 14  Johns,  (N.  Y.)84.__  4 

Clapp  etal.  v.  Noble 84  111.  02 7,  181 

Clevenger  v.  Dunaway 84  111.  367 232 

Clemens  v.  Bloomfield 19  Mo.  118 4 

Clinton  Wire  Cloth  Co.  v.  Gardner  et 

al 99  111.  151 8 

Cluett  et  al.  v.  Sheppard 131  111.  636 22 

Cobb  v.  Lavalle... 89   111.  331 114 

Coe  v.  Cassidy 72  N.  Y.  R.  133 270 

Cochrane  v.  Tuttle 75  111.  361 28 

Coford  v.  Bishop...... 11  111.  App.  117 191 

Commonwealth  v.  Shattuck 4  Cash,  141 64 

Commonwealth  v.  Toram ...  2  Pars,  (Pa.)  Sel'.   Cas. 

411 65 

Commonwealth  v.  Kensey 2  Pars.  (Pa.)  Sel.   Cas. 

401 69 

Commonwealth    v,  Biglow 3  Pick.  (Mass.)    81 102 

(  onsolidated  Coat  Co.  v.  Pears  et  al....39  111.    App.  453 159 

Cone  v.  Woodward 65  111.  477.. 33,  35 

Cook  v.  Norton  etal....    48  III.  20 17 

Cooney  v.  Hayes 4  Vt.  478 40 

Conley  v.  Shiller.... 34  N.  Y.  Sup.  473 254 

Consolidated  Coal   Co.    of   St.    L.   v. 

Schaefer 31  111.    App.  364 122,123 

Copeland  v.   Parker... 4  Mich.   660 46 


CASES    CITED.  XXI 

PAGE 

Coppinger  et  al.  v.  Armstrongi..    .    .8   111    App.   210:    5  111. 

App.  637 41,  49,  165 

Corrigan  et  al.    v.  City    of   Chicago 

et   al.. ...144   III.  537 170 

Coursen  v.  Browning  et  al .86  111.  57 272 

Coverdale  v.  Curry ...48  111.    App.  21:3 70 

Cox  v.  Cunningham .77  111.  545 39,  79,  96 

Cox  v.  Jordan _ .86  111.  560 2:10,232,243 

Cozens  v.  Stevenson 5  S.  &  R.  424 22,  49 

Cram  v.  Dresser 2  Sand f.  R.  120 218 

Crane  v.  Hardman.. 4  E.  D.  Smith  R.  339.  218 

Creighton  v.  Sanders 89  III.    543 124 

Croff  v.  Ballinger ...18  111.    200 

69,  71,  173  174,  175,  182 

Cunnea  v.  Williams , .11  111.  App.  72 230.  233 

Carrey  v.  Davis 1  HoilBt.  (Del.)  598 11 

D 

Daggitt  v.  Mensch  et  al 41  111.  App.  403 99 

Dale  v.  Doddridge 9.  Neb.  138 186 

Davenport  et  al.  v.  Haynie  et  al. 30  111.  App.  59 107 

Davis  v.  Lennen 24  N.  E.  Rep.  885 185 

Davis  v.Woodward _     19  Minn.  137... 68 

Devell  v.  Binkerhoff 22  Mich.  371 139 

DeWltt  v.  Pierson 122  Mass  8 250 

Dickason  v.  Dawson 85  111.  53 88,  90,  129 

Dickenson  v.  McGill 9  Cal.  47... 152 

Dickinson  v.  Petrie ..38  111.  App.  155 123 

Dickson  v.  Haley _ 16  111.  145.. 212 

Dills  v.  Stobieet  al 81  111.  202.. -8,  29,  126,  131 

Disselhorst  v.  Cadogan  et  al 21  111.  App.  179 42 

Dixon  v.  Buell 21  111.  203 41 

Dixon  v.  Haley 16  111.  145 18,  84 

Dixon  v.  Nichollsetal ...39  111.  372 230 

Doe  v.  McMahan 3  Scam.  (111.)  12 4 

Donnely  v.  Thieben __9  Bradw.  495 227 

Doty  v.  Burdick. 83  111.  473 

.44.61.68.70,92.  Ill,  164.  165 


XXII  CASKS    CITED. 

PAGE 

Doran  v.  Gillespie .54  [11.  366 79,  116, 

117.  122,  128.  129,  155,  159 

Dotson  v.  The  State .6  Caldw.  (Term.)  545...  62 

Dougherty  v.  Matthews 35  Mo.  520 42 

Dow   v.  Blake 15  111.  App.  89 237 

Doyle  v.  Halleu.... ....31  Minn.  515 185 

DuBignon  v.  Tufts 63  Ga.  59... 141 

Ducker  v.  Rapp ...41  N.  Y.  Sup.  Ct.  235. .  268 

Dudley  et  al.  v.  Lee 39  111.  339.... 

49,  70,  89,  97,  160,  200 

Dunbar  v.  Bonesteel 3  Scam.  (111.)  32 167 

Dunham  v.  Carter 2  Stew.  (Ala.)  496 141 

Dunn  v.  Jaffray 36  Kansas,  408 51 

Dunne  v.  Trustees  of  Schools 39  111.  578 

.16,  115,  123.  125,  145, 146.  262 

Dunstedter  v.  Dunstedter 77  111.  580 75 

E 

Eames  v.  Preston 20  111.  389 4 

Easton  v.  Mitchell 21  111.  App.   189 16 

Edge  v.  Stafford 1  Tyr.  293 27 

Edge  v.  Stafford lCompton&  Jervis,391  27 

Edgerton  v.  Page 20  N.  Y.  R.  281 256 

Edwards  v.  Candy 14  Hun  (N.  Y.  Sc\)596  256 

Eichhorn  v.  Peterson  et  al 16  111.  App.  601 25 

Ely  v.  Ely ..80  111.  532 27,205 

Eldredge  v.  Bell 04  la.  125 34,40,47 

Eldridge  v.  Holway 18  111.  445 124 

Eliott  v.  Bishop 10  Ex.  R.  496. 225 

Elliott  t.   Atkin 45  N.  H.   30.... 249 

Emerson  v.  Sturgeon 59  Mo.  404 .  68 

Emmons  v.  Scutler 115  Mass.  367 18 

Empson  v.  Soden 4  B.  &  Ab.  R.  655 226 

Ennis  v.   Lamb ..10  111.   App.  447 191,195 

Epsen  et  al.  v.  Hinchliffe .131  111.  468.. 23,  189 

Eten  v.  Luyster 60  N.  Y.  252. 48 

Etherridge  v.  Osborn 12  Wend.  (N.  Y.)  529.  245 

Evans  v.  Winona  Lumber  Co 30  Minn.  515 9 

F 

Fabri  v.  Bryan  et  al. 80    111.   182.... 73,  152 


(ASKS    CITED.  Will 

PAGE 

Fabri  v.  Cunio 1  111.    App.  240 191 

Fairbank  v.  Streeter. - ....142  111.  226 261,266,267 

Fanning  v.   N.   W.   Life  Ins.  Co 0  111.  App.  53(5 157 

Fairman  v.   Beal... 14   III.   244... Ill,  174 

Farnam   v.  Hahman 90   111.  312 124 

Fenton  et  al.  v.  Strong... 37  111.   App.  58 237 

Field  et  al.   v.  Herrick  et  al HOI   111.   110 24,  252 

Field  v.  Herrick  et  al 5  III.   App.  54 49 

Fink  et  al.   v.  Disbrow 69   111.   70 155,  198 

Finney  v.  Harding 32  111.  App.  98 '. ., 237 

First  Nat.   Bank   of    Joliet  v.  Adam 

et   al.. 138  111.483 231 

Fishy.  Benson.. 71  Cal.  428 186 

Fishery.   Deering... ..60.111.    114... 38 

Fishery.   Smith 48   111.   184. 90 

Flood  y.  Flood 1  Allen  (Mass.),  217...  18 

Fortier  y.  Ballance 5    Gil.  (111.)  41 173 

Foss  y.   Foss 2  Bradw.   411. _.  173 

Frank  v.  Taubman .31  111.  App.  592 127 

Frazier  et  al.  v.  Caruthers  et  al 44  111.  App.  61 37,  48 

French  v.   Miller 126  111.  611 65,  139 

French  y.  Wilier _ 126  111.  611 1S8,  189 

Fusselman  v.   Worthington 14   111.   135 166.  172 


Gable  w  Wetherholt 116  111.  313 168 

Gallaway  v.  Kirby 9  111.  App.  501 201 

( lartside  et  al.  v.  Outley  et  al 58  111.  210 19 

Gardner  y.  Ketcler 3  Hill,  330 22,  49 

Gazzolo  y.  Chambers  et  al 73  111.  75 23,  49 

Gerlach  y.  Walsh 41  111.  App.  83.. 146 

<ierzebech  \.  Lord 32   N.  J.   L.  240 204 

Gilholley  v.  Washington 4 N.  Y.  217.. ..'..250,  255 

Gilliam  y.  Coon  et  al ...10  111.  App.  43 :  213 

Ginn  et  al.  v.  Sogers 4  Gilm.  (III.)  131 

...135,  138.  131).  1  II 

Godard  et  al  v.  Lieberman..     17  111.  App.  366 190 

Goldsborough  v.  Gable 140  111.  269 6,  13 

Gorman  v.  Steed... 1  W.  Va.  1 141 


XXIV  CASKS    CITED. 

PACK 

Gould  etal.  v,  Hendriekson .9111.  App.  171.   79,  161.217.  218 

Gradle  v.  Warner 140  111.  123 101 

Gray  v.  Gray.... .3Litt  465 97 

Greenaway  v.  Adams.. 12  Vesey,  395 47 

Gretonv.  Smith 33  N.  Y.  R.  345.. 256 

Gridley  v.  City  of  Bloomington 68  III.  47 208 

Griffin  v.  Kirk : 47  111.  App.  858 50,  100,  107 

Griffin  v.  Knisely .'.-75  111.  411 200 

Green  etal.  v.  Hague ...10  111.  App.  598 208,  210 

Green  v.  Hague 10  Bradw.  598 2Tt 

Grommes  et  al.  v.  St.  Paul  Tr.  Co.  et 

al. 147111.  634 

...36,  48,44.  45,  47. 

IDS,  215.  222,  252.  256,  257 
Grymes  v.  Boweren 6  Bing.  R.  4  37. 225 

H 

Haley  v.  Palmer 9  Dana  (Ky. ),  320 113 

Halley  et  al.  v.  Metcalf 12  111.  App.   141 6,230 

Hallis  v.  Burns.. ..100  Pa.  St.    206 8,10 

Halligan  v.  Wade 21  111.  470.. 248,  250,  251,  252,  253 

Hansen  v.  Dennison  et  al. . .   7  111.  App.  73 242 

Hansen  v.  Meyer  et  al 81    111.  321 45 

Hannigan  v.  Massler  et  al. 44   III.   App.    117 139 

Hard  v.  Moon 6  Cal.  161 139 

Hardin  v.  Forsythe  et  al 9!)   111.  312 166,  167 

Harlan  v.  Scott 2  Scam.  65....  154,  161,  194,  265 

Hardisty  v.  Glenn ..32  111.  62 92,93,110,  174 

Hare  v.  Stegall 60  111.  380 232.  235.  241 

Harms  et  al.    v.  McCormick  et  al...l32  111.   104 20 

Harms  v.  Salen  etal.. ...79  111.460 243 

Harrison  v.  Hill 37  111.  App.  32 50 

Haskins  et  al.  v.  Haskins. _..67   III.  446 

....  83,  136,  140,  143,  147.  185 

Hassett  v.  Johnson . 48  111.  69 95.  102.  Ill,  176 

Hatfield  v.  Fullerton.. 24   III.  278 49 

Hatfield  v.  Fullerton ....28111.  278 232 

Haupt  v.  Pittaluga .6  Bush.  493 ...  101 


CASKS    CITED.  XXV 

PAGE 

Haven  &  White  v.  Wakefield  et  al...39  111.  509 2,  220 

Havens  v.  Bickford 9  Humph.  (Tenn.)  673.  65 

Hawkins  v.  Harding .37  111.  App.  565 273 

Hays  v.  Porter - 27  Tex.  93... 98 

Hayes  v.  Lawyer 38   111.   182 39 

Hayner  et  al.  v.  Smith  et  al .63  111.  430.  .245,  249,  252.  254.  256 

Heissler  et  al.  v.  Stose... .33  III.  App.  39 197 

Herman  on  Estoppel,  sec.  868 169 

Hernion  v.  Larned 58  Iowa,  169.. 180 

Herron  v.  Gill 112  111.  247 233 

Herrell  et  al.  v.  Sizeland  et  al 81  111.  457 16,  19,  127,  215 

Hersey  et  al.  v.  Westover 11  111.  App.  197 118 

Hersey  v.  Westover ..11  Bradw.  191 181 

Hervie  v.  Turner .46  Mo.  444 186 

Hewitt  v.  Templeton  et  al 48  111.  371 92 

Hickmar  v.  Marl 55  Ind.  551 204 

Hilliard  v.  Carr 6  Ala.  557.... 160 

Hinman  v.  Kitterman .40  111.  254 155 

Hilbourn  v.  Fogg  et  al 99  Mass.  11 166,172 

Hillary  v.  Gay 6   C.  &  P.  284 68 

Hisey  v.  Troutmau 84  Iud.   115 11 

Hoagland  et  al.  v.  Crum 113  111.  365 13.5 

Hoffman  v.  Reichert  et  al 31  111.  App.  558...106,  109,  111 

Holder  v.  Soulby ....6  Jur.    N.    S.    1031;   29 

L.  J.  C.  P.  246:  8  W. 

R.  438;    C.    B.  N.  8. 

254 30 

Holladay  et  al.  v.  Bartholonase  et  al..  11  111.  App.  206 118,  234 

Home  Life  Ids.  Co.  v.  Sherman 46  N.  Y.  370 249 

Hoops  v.  Meyer 1  New  433 141 

Hope  v.  Eddington Lalor,  43 247,  248 

Hopkins  v.   Buck 3  A.  K.  Marsh,  110..  68 

House  v.  Camp 32  Ala.  541 98 

House  v.  Wilder  et  al 47  111.  510 157 

Howdyshell  et  al.  v.  Gary .21  111.  App.  288 232 

Howe  v.  Clark 23  111.  App.  145 237 

Howell  v.  Ashmore 2  Zab.  265.. 168 

Hubner  v.  Feige ..90   111.  208 103- 


XXVI  CASKS    CITED. 

PAGE 

Huftalin  v.  Misner 70  111.  55 155 

Huftalin    v.  Misner. 70  111.205 

.61,  07,  lt2,  117,  130,  174,  180 

Huggins  v.  Halligan 40   111.  173 105 

Hughes  v.   Van  Stone. 20  Mo.  App.  637. 23 

Hughes  v.  Streeter... .24  111.  647.. _  185 

Hunt   v.  Morton 18   111.  75. 19,20 

Hunter  et  al.  v.  "Whitfield  et  al 89  111.  229... 238,  242 

I 

Illingworth  v.  Burley 33  111.  App.  394 50 

111.  C.  R.  R.  Co.  v.  B.  &  O.  &  C.  R. 

R.  Co -.23  111.  App.  531 156 

International  Bank  v.  Pappers 105  111.  491 270 

Indiana.  B.&  W.  R.  R.  Co.  v.  Allen..  113  Ind.  308 185 

I.  C.  R,  R.  Co.  v.  Thompson. 116  111.  159 213 

Ives  v.  Van  Eppes 2  Wend.  165. 210 

J 

Jackson  v.  Groat 7  Cow.  (N.   Y.)  285...  40,47 

Jackson  v.  Silvernail .15  Johns.  278 46 

Jackson  v.  Harrison ...17  Johns.  66. 40 

Jackson  v.  Eddy 12  Mo.  209 249 

Jackson  v.  Odell 9  Daily  R.  371 220 

Jackson  v.  Warren 32  111.  331. 

.85,  89,  100,  101,  104,  136,  155 

Jamison  v.  Graham 57  111.   94 94,  102.  108 

Jenney  v.  Jackson  et  al 0  111.    App.   32 226 

Jex  v.  Jacob.. 19  Han.  (X.  Y.  Sc.)  R. 

105 215 

Johnson  v.  Crane  et  al 22   111.  App.   366. 1H7 

Johnson  v.   Fullerton 44  Pa    St.  460 105 

Johnson    v.   Bantock 38  111.    Ill 89,180 

Johnston   v.   Prussing.. 4  111.  App.   575 234 

Johnson   v.  West 44  Ark.  535. 65 

Jones    v.Cray GO  Cal.   508 102 

K      , 

Kassing  et  al.   v.   Keohane 4  111.  App.   460 96 

Kassing  et  al.  v.   Koehane 4  111.  App.  460 234 


GA8ES    CITED.  XXVII 

Keary  v.  Baker . 33  Mo.  603 207 

Keating   v.  Springer... 146  111.  481.. 157,  158 

Keegan  v.  Kauiuaire 12  III.  App.  484 182,218 

Keegan  v.  O'Callaghan.... 35  111.  App.   142. 161 

Keernan  v.  Germain 01    Miss.  498 201 

Kent's  Com m.  vol.4,  111,  112,  1 121 

Kepley  v.  Luke.... 10  111.  App.  403. ...88,  130,  140 

Kepley  v.  Luke 100  111.  395 •__  150.  160 

Kessinger  v.  Whittaker  et  al 82  111.  22. 103 

Kilburn  v.   Ritchie 2   Cal.   145 120 

King  v.  Lawson ..98  Mass.  309 IT,  185 

Kingsbury   v.   Perkins  et  al 15  111.  App.   240 88 

Kinney  v.  Jones  et  al 37   111.  App.  015 ...  261 

Kinsley  v.  Ames 2  Met.  (Mass.)  29 17 

Kinzie   v.  Chicago ...2  Scam.  111.  187 49 

Klingensmith   v.  Faulkner 84  Ind.  331 147 

Knicht  v.  Mitchell.. 07  III.  86 11 

Knight  v.  Knight  et  al 3  111.  App.  206 101,  164 

Koob   v.  Ammana 6  111.  App.  160 242 

Kratz  v.  Buck... 111   111.  40.... 88 

Kruse  v.  Kruse 68   111.  188.. 238 

Kurrus  v.  Seibert. 11  111.  App.  319. 208 


Ladd  v.  Griswokl 4  Gil.  25 51 

Laird  v.  Winters 27  Texas,  440 98 

Lake  v.  Campbell 18  111.  106 3 

Lake  v.  Frasher 79  Via,  409 152 

Lambert  v.  Borden .16   III.  App.  431 158 

Langford  v.  Selmes 3  Kay  &  J.  220 169 

Lathrop  v.  Clewiss _.63  Ga.  282.. 228 

Leadbeater  v.  Roth 25  111.  587 252 

Leary  v.  Pattison. 06   111.  203 143,155,159 

Leech  v.  Koenig... 55  Mo.  451 39 

Lehman  v.  Whittihgton 8  111.  App.  74 

87,  90,  116,  117,  122,  17:: 

Leman  et  al.  v.  Best  et  al.. ..-30  111.  App.  323 227 

Leindecker  et  al.  v.  Waldron 52  111.  283 77,  190 

Leiter  v.  Pike  et  al ...127  111.  287 5,42,50 


XXV111  (ASKS    CITED. 

PAGE 

Lesher  v.  Sherwin 86  111.  420... 82,  83,  84,  178,  181 

Leopold  v.  Judson  et  al 75  111.  536..- 253,256 

Libbey  v.  Tolford ...48  Me.  316 9 

Linde  v.  Hough 27  Barb.  415 46 

Lindley  v.  Dakin 13  Ind.  388.. 39 

Lindley  v.  Miller 67  111.  244 236.  240,  241 ,  244 

Little  et  ux.  v.  Dyer 35  111.  App.  35 188,211 

Livingston  v.  Miller 8  N.  Y.  R.  283 229 

Loach  v.  Farnam  et  al. 90  111.  368 *___  .'! 

Louis   v.  Stitle 2  Litt.  294 97 

Louis  et  al.  v.  Fisb 40  111.  App.  372 24 

Lunn  v.  Gage.... ...37  111.  19 .201,203 

Lynch   v.  Baldwin 69   111.  210 

13,  234.  250.  252,  254,  2f><i 

Mc 

McCartney  v.  McMullen 38  111.  237 74,  75,  76, 

92,  93.  96,  109.  164.  176 

McCartney  v.  Hunt  et  al 16  111.  76 77,  82,  98 

McCoull  v.  Herzberg 33  111.  App.  542 205,  211 

McDevitt  v.  Lambert ...80  Ala.  536 25 

McFarlane  v.  Pierson 21  111.  App.  566 207,254 

McFarlane  v.  Williams 107  111.  33 6,  14.  19 

McGlynn  v.  Moore 25  Cal.  348 151 

McGillick  v.  McAllister. 10  III.  App.  40.. 236 

McHan  v.  Stansell 39  Ga.  197 ' 111 

McKinney  v.  Peck. 28  111.  174 19 

McKeage  v.  Hanover  F.  Ins.  Co 81  N.  Y.  R.  38 225 

McMillan  v.  Solomon J  42  Ala.  356 28 

McNair  v.  Schwartz... .16  111.24 212 

M 

Mackinetal.  v.  Blythe. 35  111.  App.  216 333 

Maloney  v.  Shattuck 15  111.  App.  44 _  147 

Mann  v.  Brady .67  111.  95 174 

Mann  v.  Brady 67  111.  95 107,  109 

Mason  v.  Finch 2  111.  (1  Scam.)  495.. 9S.  107.  217 

Mason   v.  Powell J58  N.  J.  576 6S 


OASES    CITED.  XXIX 

PAOK 

Mason  v.  Finn --13  111.  525 226 

Mason  v.  Tiffany,. 45  111.  392 -  51 

Mason  v.  Grey - --36  Vt.  308 17,  18 

Mattocks  v.  Helm 5  Litt.  185 186 

Mendel  v.  Fink 8  111.  App.  378 209,210,219 

Messingill  v.  Boyles 11  Humphrey..  112 77 

Mickle  v.  Miles 31  Pa.  St.  20. 13 

Miller  v.  James 36  111.  399;  67  111.  395..  239,240 

Miller  et  al.  v.  White.. ...80111.  580.... 81 

Miller  et  al.  v.  White 80  111.580 80,  194,  195 

Miller  v.  Ridgely 19  111.  App.  306,. 6 

Minor  v.  Sharon 112  Mass.  R.  477 220 

Minturn  v.  Burr 20  Cal.  48 104 

Mitchell  v.  Davis 23  Cal.  381 187 

Mitchell  v.  Plant 31  III.  App.  128 205,219 

Monsen  v.  Stevens ..56  111.335... 84 

Muntanye  v.  Wallahan 84  111.  355 251 

Moore  v.Smith 24  111.  513 227 

Morey  et  al.  v.  Pierce 14111.  App.  91 211 

Morgan  v.  Smith. 70  N.  Y.  R.  537,543...  271 

Morris  v.  Tillson  et  al ...81  111.  607 248,  249 

Mueller  v.  Newell. 29  111.  App.  192 96 

Murphy  v.  Williamson 85  111.  149... 129 

Murphy  v.  Lucas 2  0.  255 137 

Murphy  v.  Dvvyer 11  111.  App.  156 150,  181 

Murr  v.  Glover  et  al. 34  111.  App.  373 231 

Murry  v.  Harper 3  Ala.  374 196 

N 

Nash   v.  Berkmeh. ...83    Ind.  536 10 

Nave  v.  Benney 22  Ala.  382 22 

Neill  et  al.  v.  Chessen.. 55   111    App.  266 42 

JNewfeld    v.  Beidler 37  111.  App.  34 79 

-Nicholson  et  al.  v.  Walker  et  al....4  111.  App.  404 87,  90 

Nicholson  et  al.  v,  Walker  et  al....4  111.  App.  404 169 

Nixon  v.  Noble 70  111.  32 117 

Norris  v.  Pierce... 47    111.  App.  469 160 

Norwood  v.  Kirby 70  Ala.  397.. 187 

N.  W.  Brg.  Co.  v.  Manion 47  111.  App.  627 159 


aa\  (ASKS    (TIKI). 

o 

T'A(iR 

Oakes  v.  Oakes 16  111.   106 318 

Ogildie  v.  Hull 5  Hill  R.  52 356 

Olcott  v.  Dunklee ...16  Ver.  478.. 30 

Olmstead  v.  Burke. 25  111.  86 358 

O'Hara  v.  Jones 46  111.  388.. 285,242 

O'Malla  et  al.  v.  Glynn.... 42  111.  App.  51....  156,  237,  242 

Ottum wa  Woolen  Mills  v.  Hawley . . .  44  la.  57 50 

Oswald  v.  Mollet 29  111.  App.  449 38 

Oswald  v.  Wolf 129  111.  200 309 

Otis  v.  May.   , 30  III.  App.  581 336 


Packard  v.  C.  C.  C.  &  St.   L.  R.  R. 

Co.... 46    111.  App.  244 16 

Page  et  al.  v.  De  Puy ..40  III.  506 61 

Paine  et  al.  v.  Irwin 44  111.  App.  105 206 

Palmer   v.  Ford 70   111.  369 32 

Palmer  v.  Forbes 23  111.  301 226 

Pardy  v.  Rakestraw  et  al 13  111.  App.  480 85 

Patchell  et  al.  v.  Jolmston...  64  111.  305. 32 

Patchell  &  Turner  v.  Jolmston 64   111.  305 78 

Patterson  et  al.  v.  Graham 140  111.531.. 

....113,  126,  145.  246,  254,  256 

Patterson  et  al.  v.  Hubbard  et  al 30  111.  20 1 77 

Pearson    v.  Herr 53  111.  144 

.94,  95,  110.  113,  168,  174,  180 

Peck  v.  Hiller 31  Barb.  R.  171 245,  246 

Peck  v.  Ledwidge 35  III.  109 206,  207 

Peck  v.  Scoville  Mfg.  Co 43  111.  App.  360 205 

Pensoneau  v.  Bertke 2  III.  161. 95 

People  v.  McAdam 84  N.  Y.  287 104 

Peterson  v.  Sweet 13    111.  App.  255 170 

Pettyman  v.  Unland  et  al 77  111.  206 238,  242 

Phelps  v.  Randolph 147  111.  335 ...73,79,164 

Phillips    v.  Sampson 2  Head  (Tenn.),  439...  171 

Pitt  v.  Laming .4  Camp.  77 27 

Pittet  al.  v.  Swearingen... .76  111.  250 263,  264 

Plattv.  Farney ....16  111.  App.  216 211 


(ASKS    CITED.  XXXI 

PAGE 

Pleasance  v.  Claghorn.. 2  Miles  (Pa.),  302 10 

Post  v.  Bohner.. -36  N.   W.   Rep.  (Neb.) 

208 116 

Poppers  v.  Meagher 14S  111.   192.. ..22,  134,  163.  219 

Poppers  v.  International  Bank 10  111.  App.  531 264 

Pratt  v.  Hone  et  al.... 10  III.  App.  633 76,  94 

Powers  v.  David. 6  Ala.  9 161 

Prehman  v.  Stifel ...41  Mo.  184.  175 

Prickett  v.   Hitter ...16  111.  96 

..6.  17,  116.  121,  124,  126,  12$ 

Prendergast   v .  Young 1  Foster,  23s 22 

Prescott  v.  Overstayer 85  Pa.  St.  534 197 

Prettyman  v.  Walston  et  al. ..34   111.  175 164.  221 

Preston  v.  Kehoe. 10  Cal.  445 107 

Preston  et   al.  v.  Zahl.... ..4  111.  App.  423 89.  90 

Price  v.  P.  &  F.  W.  C.  R.  R.  Co 34  111.  13 214,  246 

Proctor  et  al    v.  Taws  et  al... 115  111.  138 17 

Q 

Qiiinlan  v.  Bonte 25  111.  App.  240 7 


Ragor  v.  McKay  et  al 44  111.  App.  79 160,  165 

Rains  v.  Oshkosh 14  Wis.  372 107 

Randall  v.  Lynch 2  East.  182. 20 

Reed   v.  Bartlett 9  111.  267 39 

Reed  v.  Grant 4  Cal.   17<3 81 

Reed  v.  Hawley 45  111.  10. ...77.  80,  81,  105,  123 

Rees  v.  Lawlass .6  Litt.  184 106 

Reeves  v.  Hyde 14  111.  App.  233 216 

Reader  et  al.  v.  Purdy  et  ux .41  111.  284... 61.  63,  69,  71 

Reichenbacher  v.  Paheyer .8  Bradvv.  217 27,  207 

Rensen  v.  Conklin .18  Johns.  R.  447 229 

Rev.  Stat.  1874,  p.  535. 86 

Rev.  Stat.,  chap.  57.  sec.  5.. 143 

Rex  v.  Nichols 1  Kenyon,  512 64 

Reynolds  v.  Gage 91  111.   125.. .125,  134,  140,  144 

Reynolds  v.  Thomas  et  al.. .17  111.  207 106,  161 

Rice  v.  Brown... 77  111   549. ..87.  90,  96,  102.  11& 


XXX11  TASKS    CITED. 


Richardson  v.  Richardson 75  Mass.  213 28 

Rider  v.  Bagley 41  111.  365 262 

Ridgley  v.  Stillwell 27  Mo.  128. 230 

Rigg  v.  Cook 4  Gil.  (111.)  336 164 

Riverside  Co.  v.  Townshend  et  al.,.120  111.  9 186 

Robertson  v.  Robertson ..2   B.  Mon.  (Ky.)  235..  196 

Robinson  v.  Crummer 5  Gil.  (111.)  218 63,  99.  217 

Robinson   v.   Berry __ ..21  Ga.  183 40 

Rosenbaum  v.  Gunter : 2  E.  D.  Smith  R.  415..  269 

Rowland  v.  Hewitt 19  111.  App.  450 158 

Rucker  v.  Wheeler  et  al 39  111.  436 267 

Ryan  v.  Kirchberg , 17  111.  App.  132 8 

Ryan  v.  Kirchberg. 17  111.  App.   132 158 


Sanborn  v.  Haynex  et  al ...26  111.  App.  335 212,  813 

Schaumtoeffel  v.  Belm 77  111.  569....  137,  147,  159,  180 

Scheidt  v.  Belz  et  al 4  111.  App.  431 46.50,51 

Schreider  et  al.  v.  Chicago  &  Evans- 
ton  R.  R.  Co ...115  111.  340 125 

Seem  v.  McLees 24  111.  192.. 

....122.  124,  126.  160,  174,  198 

Sexton  v.  Chicago  Storage  Co.  etal—129  111.  318 14,  47,  198 

Sexton  et  al.  v.  Carley .147  111.  269 164,170 

Shackelford    v.    Bailey 35   111.387.: 185 

Sheetz   v.  Baker 38  111.   App.  349 231,233 

Sherman  et  al.  v.  Dutch 16  111.  283 45 

Sheridan  v.  Beardsley  et  al 89  111.  477 262,263 

Shepherd  v.  Cummings 1  Coldw.  (Tenn.)  354..  9 

"Shoudy  v.  School  Directors.. 32  111.  290 92 

Shumick  et  al.  v.  Thompson 25111.  App.  319.151,  156, 158.  268 

Shinkell  v.  Letcher  et  al 40  111.  48 269 

Silvey  v.  Simmer .61    Mo.  253 139 

Silverman  v.  Chase,  Exr ...90  111.  42 51 

Simons  v.  Jenkins 76   111.  479 118 

Smith  v.    Kinkaid 1111.  App.  620 207,213 

Smith  v.  Marrable.. 11  M.  &  W.  5 30 

Smith  v.   Marrable... 11  M.  &  W.  R.  5  P.  R.  220 

Smith  et  al.  v.  McLean  et  al 22  111.  App.  451 198 


CASES.  CITED.  XXX111 

PAGE 

Smith  v.  The  People .. .99  111.  445... 186 

Smith  v.  Hellinback  et  al .51  111.  223 92,  93 

Smith  v.  Killeck 5  Gilni.  293 115,  145 

Smith  v.  Reed ...52  How.  (N.  Y.)  Pr.  14.  30 

Smith  v.  Hoag 45  111.  250.. 73,  92,  167,  174,  175 

Snyder  v.  Norris 2  M.  &  S.  286 4 

Sourwine  v.  Truscott ....17  Hun  (N.  Y.),  432...  10 

Spear  v.  Lomax 42  Ala.  516 102 

Spinney  v.  Barbe... 43  111.    App.  585 226 

Spurch  v.  Forsyth... 40  111.  438 92,  94,  143,  154 

State  v.  Pierson 2  N.  H.  550 97 

State  v.  Walker... 5  Sneed.  (Tenn.).259.._  64 

Star  v.Stark 1   Sawy.  275 185 

Steele  v.  Grand  T.  Junction  Ry.  Co.. 125  111.    385 151 

Stewart  et  al.  v.  Munford 91  111.  58.. 24,  131 

Stiner  v.  Prickly 28  111.  179 136,141 

Stillman  v.  Palis .134  111.  532 127,  146,  165 

Stobie  et  al.  v.  Dills 62  111.  432.... 24 

Stoe  v.  Russell  et  al .36  111.  18 198 

St.  John  v.  Quitzow... 72   111.  334 167 

St.  Louis  Nat.  Stock  Yards  v.  Wiggins 

FerryCo.. 102  111.  514. 63 

Stolberg  v.  Ohnmacht ..50   111.  442 138 

Stolberg  v.  Ohmacht .50  111.  242 261 

Stohecker  v.  Barnes 21  Ga.  430 202 

Stuart  v.  Hamilton 66  111.  253 34 

Stubblefield  v.  Soule 21    111.  App.  154. 217 

Stubbings  v.  Village  of  Evanston...l36   111.  37.... 254 

Sutherland  v.  Goodnow  et  al .108  111.  528 14,  47 

Sullivan  v.  Ivey 2  Sneed.  (Tenn.)487.._  84 

T 

Tanton  v.  Van  Alstine. 24  111.   App.   405 125 

Taylor  Landlord  and  Tenant Sec.  66  and  67 

...27,  30,  31,  49,  131,  133,  215 

Taylor  v.  Bailey 74  111.  178 209,210 

Taylor  v.  Taylor ..64Ind.  356 268 

Taylor  v.  AVhite ..1  T.  B.    Mom  (Ky.)  37  173 

Taylor  et  al.  v.  Koshetz... 88   111.  479. 219 

T.  Est.  v.  Devers .2  Black  F.  80 194 

c 


XXXI V  (jASfeS    (,'ITKH. 

PAGE 

Teeney    v.   Child 1  Maule  &  Selwin,  262  16 

Thielman  et  al.  v.Carretal 75  111.  385. 226 

Thorn  v.  Reed 1  Ark.  480 126 

Thome  v.  Lucket... .5  C.  B.  38 29 

Thompson    v.  Mead 67   111.    395 .238,240,242 

Thomsen  v.  McCormick 136  111.  135 190 

Thomasson  v.  Wilson 46  111.  App.  398 

70,  73, 97, 102. 104, 164, 165, 196 

The  Chicago  Stove  Co.  v.  Wheeler. J4  111.  App.  112 207 

The  U.  B.  Manfg.  Co.  v.  Lindsay... 10  111.  App.  583.. 208 

Tiernan  v.  Hinman  16  111.   400 22 

Tilghman  et  al.  v.  Little ...13   111.  239 169 

Tobey   Furn.  Co.  v.  Rowe .18  111.  App.  293 51 

Toler  v.  Seebrook 39  Ga.  14. 228,  230 

Tomle  v.  Hempton.. ...129  111.  379 208 

Tompson  v.  Sornberger 59   111.  326 

..63,  92,  93,  110.  143,  157,  174 

Townsend   v.  Gilsey 7  Appr.  (Ms.)  59 255 

Townsend  v.  Brooks 5  Cal.  52 141 

Tolman  et  al.  v.  Green  et  al 39  111.  225 266,  267 

Tucker  v.  Phillips 5  Metcalf  (Ky.),  416.  63 

V 

Vance  v.  Funk... 3  111.  263 4 

Van  Hook  v.  Story 4  Humphries  (Ten  n.),  59  99 

Vanarden  v.  Decker Paine,  108 106 

Vallv.  Butler ..._49Cal.  74 113 

Vansant  v.  Allmon 23  111.  30 163 

Vanderhurell  v.  Storrs 3  Conn.  203 212 

Van  Rensselaer  v.  Jones 5  Denio  R.  449.  453 229 

Venmun  v.  Venmun ...56  111.  230 117,  121,  124,  134 

Voltz  v.  Harris  et  al 40  111.  155 268 

W 

Wade  v.  Xewbern ...77  N.  C.  460 4 

Wade  v.  Halligan 1G  111.  507 ..23,  203,  244 

Walker  v.   McGill... 40  Arkansas  38 185 

WTalker  v.  Shoemaker 4  Hun    (X.   Y.    8.  C), 

R.  579 218 


(ASKS    CITED.  XXX  V 

PAGK 

Walker  v.  Wilson 52  111.  352 9 

Walker  et  al.  v.  Tucker  et  al 70  111   527 23,  251 

Walker  v.  McDonald.. 28  111.  App.  643 38 

Walker  et  al.  v.  Ellis  et  al. -12  111.  470 ....19.  123,  131 

Walter  v.  Dewey 16  Johns  R.  222 229 

Wallace  v.  Headley .23  Pa.  St   106 13 

Wallace  v.  Hall 22  Kan.  271 190 

Wall  v.  Goodenough... 16  III.  415 33,  110,  112 

Warner  v.  Hale  et  al ..65  111.  395...    18 

Wart.  Cr.  L.,  vol.  2,  sec.  1083 63 

Watson  et  al.  v.  Hooten  Exr 4  111.  App.  294 206 

Watson  v.  Whitney 23  Cal.  375 151 

Watson  v.  Hankins .13  la.  547 41 

Watt  v.  Scofield _ 76  111.  261 242 

Watts  v.  Coffin... 11  Johns.  495. 216 

Wear  v.  Killeen 38  111.  259... 155 

Webster  et  al.  v.  Nichols  et  al 104  111.  160 

7,'34,  37.  45,  238,  242 

Webb  v.  Hayman 40  111.  App.  335 103 

Weist  v.  The  People 39  111.  507 154 

Welford  v.  Beazley 3  Atk.  503 5 

Wells   v.  Hogan ...Breese,  337 142.154,160 

Wells  v.  Reynolds 3  Scan.  (111.)  191 191 

Wells  v.  Mason  et  al 4  Scram.  (111. )  84 21 ,  168 

Werner  v.  Ropiequet ...44   111.  522.. 235 

Wescott  v.  Arbuckleetal 12Bradw.  579 61,  104 

Weston  v.  Haley. 27  Vt.  283... 139 

West  v.  Frederick 62  111   191 83,  85 

Wetsel  v.  Mayers  et  al... 91    111.    497 .238,  239,242 

Wheelen  v.  Fish 2   Bradw.  447. 

92,  116,  165,  173,  179 

Whiting  v.  Brastow.... 4  Pick.  R.  310 226 

Whitaker  et  al.  v.  Gautier 3  Gilm.  443 93,  100,  145 

White  v.  Maynard .111  Mass.  250 28 

Whitney  v.  Allaire.. .1  N.  Y.  R.  305   to  310  221 

White  v.  Suttle 1  Swan  (Tenn.),  169...  141 

Whittimo're  v.  Gibbs .24  N.  H.  484 17 

Wilburn  v.  Haynes .53  111.  207 84 

Wilcox  v.  Radden 7  111.  App.  594 7 


XXX VI  CASKS    CITED. 

PA  OK 

Wilyes  v.  Whitehead .89  Pa.  St.  181. 9 

Wilder  et  al.  v.  House .48  111.  279 67,  72 

Wildermann  et  al.  v.  Sandusky 15111.  59 191 

Willard  v.  Reinhardt 2  E.  D.  Smith,  148  ... .  27 

Williams  v.  Newcomh.. 16  Mo.  185 186 

Williams  v.  Vanderhilt 145  111.  138. _.._37,  38,  126 

Williamson   v.  Paxton 18  Gratt.  (Va.)  475....    84,106 

Wilier  v.  French 27  111.  App.  76 137,  188 

Windett  v.  Horlbut 115  111.  403.. 156 

Wineman  et  al.  v.  Hughson 44  111.  App.  29 40 

Witz   v.  Haynes 43  Ind.  470 141 

Wolcott  v.  Sullivan 9  Paige  (N.  Y.),  117..  204 

Wolz  v.  Sanford... ....10  111.  App.  136 7 

Wood  v.  Tucker... .66  111.  276 2(18 

Woodward  v.  Blanchard 16    111.424 162 

Wood  on  Landlord  and  Tenant,  304 ..20,  27,  30,  32,  37 

Woodward  v.  Cone .73111.  241 32 

Wright  v.  Lattin'etal ..38  111.  293 

.24,  197.  201, 206,  217,  251,  254 

Y 

Yoder  v.  Earley 2  Dana  (Ky. )  245 1 07 


LAW    OF 

FORCIBLE  ENTRY  AND  DETAINER. 


CHAPTER  I. 

THE   LAW   OF  THE  LEASE. 

Section     1.  Definition. 

2.  Written  leases. 

3.  Signature  and  seal. 

4.  Implied  leases. 

5.  Parol  leases. 

6.  Parol  agreement  with  the  lease. 

7.  Fraud  in  leases. 

8.  What  may  be  leased. 

9.  Consideration. 

10    Agreement  for  a  lease. 

11.  Present  demise. 

12.  Time. 

Kinds  of  Tenancy. 

13.  Tenancy  at  will. 

14.  Tenancy  at  sufferance. 

15.  Tenancy  by  the  month. 

16.  Tenancy  by  the  year. 

17.  Tenancy  for  life. 

18.  Covenants. 

19.  Express  covenants. 

20.  Implied  covenants. 

21.  Surrender  of  leases. 

22.  Rooms  and  lodgings. 

23.  Who  are  lodgers. 

24.  Who  are  tenants. 

25.  Lien  on  baggage  for  board. 

26.  Rights  of  lodgers. 


2  DEFINITION.  [§  1. 

27.  Landlord  defined. 

Forfeiture  of  Leases. 

28.  Nature  of  forfeitures. 

29.  Forfeitures  at  common  law. 

30.  Under  the  statutes. 

31.  Waiver  of  forfeiture. 

Attornment. 

32.  Definition. 

33.  Implied  attornment. 

£  1.  Definition The  word  "lease"  has  been  derived 

from  the  Saxon  word  "  leapum "  or  "leasum,"  "  for 
that  the  lessee  cometh  in  by  lawful  means."  A  lease  is 
a  contract  for  the  possession  and  profits  of  lands  and  tene- 
ments, either  for  life  or  for  a  shorter  term.1  A  better 
and  clearer  definition  is  a  conveyance  of  any  lands  or 
tenements  (usually  in  consideration  of  rent  or  other 
annual  recompense)  made  for  life,  for  years,  or  at  will, 
but  always  for  a  less  time  than  the  lessor  has  in  the 
premises. 

The  lessor  is  the  person  who  grants  the  lease,  and  the 
lessee,  the  person  to  whom  the  lease  is  made.2 

"To  constitute  a  valid  lease,  it  is  not  essential  that 
the  building  which  is  the  subject  of  the  contract  should 
be  erected  fit  the  time  the  lease  is  made,  or  that  the 
lessor  should  at  that  time  be  the  owner  of  the  ground 
upon  which  the  building  is  to  be  placed." 

A  lease  is  a  contract  between  landlord  and  tenant,  fix- 
ing the  terms  of  the  tenancy.  The  Rev.  Stat.,  chap.  SO, 
sec.  13,  says:      "The  term  -lease,'  as  used  in  this  act. 

1  Bouv.  Law  Die. 

'-'  Anderson  Dictionary  of  Law,  606;  2  Bl.  Com.  317. 

3  Haven  &  White  v.  Wakefield,  et  al.,  39  111.  509. 


§  -.J  WRITTEN    LEASES.  3 

shall  include  every  letting,  whether  by  verbal  or  written 
agreement.''  With  many  persons  the  word  lease  is  used 
only  to  designate  a  written  lease,  but  in  law  the  contract 
of  letting  is  the  lease,  whether  written  or  verbal,  and  the 
written  document  is  simply  evidence  of  the  contract. 

§  2.  Written  leases — If  a  lease  is  in  writing,  it  does 
not  need  to  be  under  seal ;  nor  does  it  need  to  be  acknowl- 
edged or  recorded  to  give  it  validity ;  and  the  lease  can 
be  made  by  the  landlord  or  his  agent,  and  it  is  not  neces- 
sary that  the  agent  should  have  other  than  verbal  author- 
ity from  his  principal  to  authorize  him  to  execute  the 
lease  without  seal.  But  if  the  lease  is  made  in  writing 
under  seal,  in  that  case  the  agent  must  have  authority 
under  seal  to  act. 

"  An  agent  can  execute  a  sealed  instrument  for  and  on 
behalf  of  his  principal  only  when  he  has  authority  to  do 
so  in  writing,  under  seal."1  But  as  leases  are  not 
required  to  be  sealed,  an  agent  can  make  a  valid  lease 
on  verbal  authority  only. 

Written  leases  are  frequently  prepared  in  duplicate, 
one  of  which  duplicates  is  executed  by  the  lessor,  the 
other  by  the  lessee.  In  such  case,  both  papers  must  be 
treated  as  a  single  instrument  and  must  have  the  same 
legal  effect  as  if  each  was  signed  by  both  parties  at  the 
same  time. 

In  some  states  a  lease  is  required  to  be  under  a  seal  the 
same  as  a  deed ;  but  in  the  State  of  Illinois  a  lease  need 
not  be  under  seal  to  be  valid  between  the  parties.2 

1  Lake  v.  Campbell,  18  111.  106;  Loach  v.  Farnum  et  al.,  90  111.  368; 
Beidler  et  al.  v.  Fish,  14  111.  App.  29. 
8  Lake  v.  Campbell,  18  111.  106. 


•4  SIGNATURE    AND    SEAL.  [  §  3. 

^  3.  Signature  and  seal. — An  instrument  required  to 
be  sealed  must  have  a  scroll,  the  word  "  seal  "  or  some- 
thing for  a  seal;  "  witness  my  hand  and  seal"  without 
a  seal  is  not  a  sufficient  sealing-.1 

The  proper — not  essential — words  to  constitute  a  lease 
are  "demise,  grant  and  to  farm  let." 

The  date  of  a  lease  is  not  part  of  its  substance,  its  real 
date  being  the  time  when  it  is  delivered. 

The  names  of  the  lessor  and  lessee  in  a  formally  worded 
lease,  generally  appear  near  to  its  commencement,  after 
the  date.  Manifestly  the  document  is  incomplete  unless 
their  names  appear  somewhere  in  it ;  and,  as  just  remarked, 
a  lease  under  the  statute  must  be  subscribed  by  the  lessor 
or  his  properly  authorized  agent. 

Leases  may  be  made  by  written  contract  or  may  be 
implied  from  acts  and  words  of  the  parties. 

It  is  essential  to  a  complete  written  lease  that  the 
parties  affix  their  signatures  thereto,  or  such  an  act  of 
recognition  as  would  in  law  amount  to  a  signature ;  until 
some  such  act  or  thing  is  done,  it  is  not  a  lease.2 

A  signature  to  a  lease  may  be  made  with  a  lead-pencil 
or  in  ink,  or  if  the  party  so  signing  is  in  the  habit  of 
using  a  stamp  with  his  name  upon  it  as  his  signature,  an 
impression  of  this  made  by  him  is  sufficient.3 

And  it  was  held,  that  where  a  letter  has  been  written 
by  a  party  to  a  lease,  to  another  party  to  it,  referring  to 

1  Vance  v.  Funk.  3  111.  263;  Doe  v.  McMahan,  3  Scam.  (111.)  12  (and 
note):  Eames  v.  Preston,  20  111.  389. 

-  Clemens  v.  Bloomfield,  19  Mo.  118;  Wade  v.  Newbern,  77  N.  C.  460. 
3  Snyder  v.  Norris,  2  M.  &  S.  286;  Clason  v.  Bailey,  14  Johns  (N. 

Y.),  84. 


vj  4.  |  (MPLIED    LEASES.  5 

it  and  acknowledging  it  as  his  contract,  it  was  sufficient 
to  bind  such  party.' 

A  lease  by  an  infant  lessor,  himself,  is  voidable  by  him 
upon  attaining  majority,  and  the  lessee,  doubtless,  in  the 
meantime  has  no  valid  title  to  the  possession.  Accept- 
ance of  rent  accruing  after  majority  is  a  confirmation, 
and  will  render  the  lease  binding.  In  the  case  of  an 
infant  lessee,  continuance  in  possession  of  the  premises 
after  majority  operates  as  a  confirmation  and  binds  him 
to  the  payment  of  the  rent. 

A  receipt  expressing  the  terms  and  nature  of  the  ten- 
ancy may  be  a  lease.  For  instance,  the  following  was 
sustained  as  a  lease : 

••  Chicago,  Dec.  7.  1871. 

"Received  of  M.  F.  Casey  ten  dollars  ($10.00)  <>n 
rent  of  store  on  corner  of  Lake  and  Canal  streets  (No. 
22),  which  Mr.  Casey  is  to  have  for  one  hundred  dollars 
($100.00)  per  month  until  May.  1873."* 

If  a  tenant  signs  a  lease,  retains  one  and  makes,  signs 
and  seals  a  duplicate  thereof  and  sends  the  same  to  the 
lessor,  this  in  law  will  amount  to  an  acceptance  of  the 
lease,  notwithstanding  the  lessee  may  send  with  the 
duplicate  a  letter,  stating  that  he  does  not  assent  to  the 
terms  of  the  lease  as  to  the  amount  of  rent  he  is  to  pay. 
Where  his  deliberate  acts,  under  seal,  evince  an  accept- 
ance of  the  lease,  his  words  cannot  be  received  to  a  con- 
trary intent.3 

§  4-.  Implied  leases. — Where  a  lease  recites  that  the 

1  Welford  v.  Beazley,  3  Atk.  503. 
'2  Berrington  v.  Casey,  78  111.  317. 
3Leiter  v.  Pike  et  al.,  127  111.  287. 


6  IMPLIED    LEASES.  [  §  4-. 

lessee  is  to  pay  a  certain  sum  as  rent  for  the  premises, 
and  he  accepts  the  lease,  which  he  may  do  by  retaining 
the  lease  without  objection,  by  going  into  possession  under 
it  or  other  similar  ;ict,  this  makes  him  a  direct  promissor 
to  pay  the  rent,  although  he  has  not  signed  or  executed 
the  instrument.1 

The  acceptance  of  rent  b}7  a  landlord  from  a  tenant 
who  is  holding  over  after  the  termination  of  his  tenancy, 
will  amount  to  an  election  on  part  of  the  landlor'd  to  con- 
tinue the  tenancy  on  the  same  terms  as  before.2 

Where  the  old  lease  expires,  the  tenant  holds  over  and 
the  landlord  receives  the  rent,  it  is  presumed,  as  a  matter 
of  law,  that  the  old  lease  is  renewed  in  all  its  terms.3 

Where  a  tenant  under  a  lease  for  a  year  or  years  holds 
over,  it  will  be  construed  as  an  implied  agreement  that 
he  shall  hold  for  a  corresponding  period,  upon  the  same 
terms,  unless  there  be  some  act  of  one  or  both  of  the 
parties  to  rebut  the  implication.4 

Six  months  prior  to  the  end  of  the  term,  the  landlord 
said  to  the  tenant :  "If  you  stay  on,  you  will  have  the 
rent  reasonable  and  I  will  throw  off  for  heretofore. "  The 
tenant  said  nothing ;  nothing  further  was  said  and  the 
tenant  held  over.  As  no  notice  was  given  and  no  new 
arrangement  made,  the  tenant  was  held  to  occupy  the 
premises  as  tenant  from  year  to  year  and  must  pay  the 
same  rent  as  for  previous  years.5 

Where  a  tenant  occupies  under  a  lease  for  one  year  and 

1  McFarlane  v.  Williams,  107  111.  33, 
-  Goldsborough  v.  Gable.  140  111.  269. 

3  .Miller  v.  Ridgely.  19  111.  App.  306. 

4  Prickett  v.  Putter.  16  111.  96. 

sHolley  et  al.  v.  Metcalf.  12  111.  App.  141. 


§  4.]  IMPLIED    LEASES.  7 

holds  over  without  any  new  agreement,  the  landlord  may 
elect  to  treat  him  as  a  tenant  for  another  year,  on  the 
same  terms.1 

A  tenant  for  years  holding  over  after  the  expiration  of 
his  lease  without  any  new  arrangement  with  his  landlord 
may  be  treated  as  a  tenant  for  another  year  upon  the 
terms  of  the  original  lease.2 

If  the  assignee  of  a  leasehold  estate  continues  to  occupy 
the  premises  after  the  term  has  expired,  without  any  new 
agreement,  the  law  will  bind  him  to  the  same  terms  by 
which  he  was  bound  by  the  expired  lease.3  At  common 
law  "  covenants  "  it  is  said,  "  ran  with  the  land  but  not 
with  the  reversion.  Therefore  the  assignee  of  the  lessee 
was  held  to  be  liable  in  covenant  and  to  be  entitled  to 
bring  covenant,  but  the  assignee  of  the  lessor  was  not. " 

Where  a  tenant  holds  over  after  the  expiration  of  his 
term,  with  the  implied  assent  of  the  lessor,  it  will  be 
upon  an  implied  undertaking  or  liability  to  pay  rent 
thereafter,  on  the  same  terms  as  in  the  original  lease.1 

AVhere  a  tenant  took  a  lease  of  certain  premises,  which 
was  canceled  before  the  tenant  came  into  possession 
thereof,  but  the  tenant,  being  in  possession  under  an  old 
lease,  remained  a  few  days  in  occupancy  of  the  premises, 
and,  upon  receiving  notice  from  his  landlord,  that  he 
would  be  considered  as  holding  over  under  the  prior 
lease,  immediately  vacated  the  premises,  in  such  case 
there  is  no  implied  tenancy  for  another  year.0 

1  Quintan  v.  Bonte,  25  111  App.  240. 

2  Wolz  v.  Sanford,  10  111.  App.  136. 

:j  Webster  et  al.  v.  Nichols  et  til.,  104  111.  160. 
4 11  app  et  al.  v.  Noble,  84  111.  62. 
5  Wilcox  v.  Raddin,  7  111.  App.  594. 


8  PAROL    LEASES.  |    ^   5. 

"Where  a  tenant  left  certain  property  in  the  house  and 
offered  the  same  to  the  lessor  in  payment  of  rent  due  and 
the  lessor  took  time  to  consider  whether  he  would  take 
the  same,  but  gave  no  notice  to  the  tenant  that  lie  would 
not  accept  it  in  payment  for  some  considerable  time,  it 
was  held  that  his  silence  implied  assent  and  justified  the 
jury  in  finding  a  payment  of  the  rent.1 

Where  a  tenant  for  a  year  or  years  holds  over  after 
the  expiration  of  his  lease,  without  making  any  new 
arrangement  with  his  landlord,  the  landlord  at  his  elec- 
tion  may  treat  the  tenant  as  a  trespasser  or  as  a  tenant 
for  another  year,  upon  the  same  terms  as  in  the  original 
lease,  and  this  though  the  tenant  has  no  intention  of 
holding  over  for  a  year  or  of  paying  the  same  rent.  The 
law  lixes  the  tenant's  liability  for  holding  over  independ- 
ent of  his  intention.  The  legal  presumption  of  a  renewal, 
from  the  holding  over,  can  not  be  rebutted  by  proof  of  a 
contrary  intention  on  the  part  of  the  tenant  alone.2 

§  5.  Parol  leases. — A  parol  lease  is  where  the  parties 
a<>ree  either  orallv  or  by  a  writing  not  under  seal. 

The  taking  of  a  new  lease  by  parol  is,  by  operation  of 
law  a  surrender  of  the  old  one,  although  it  be  by  deed, 
provided  it  be  a  good  one  and  pass  an  interest,  according 
to  the  contract  and  intentions  of  the  parties.4 

A  lease  of  land  by  parol,  for  a  term  not  exceeding  one 
year,  is  valid.5 

1  Dills  v.  Stobie  et  al.,  81  111.  202. 

-'  Clinton  Wire  Cloth  Co.  v.  Gardner  et  al.,  99  111.  151. 

3  Hallis  v.  Burns,  100  Pa.  St.  206. 

4  Ryan  v.  Kirchberg,  17  111.  App.  132. 

5  Bull  v.  Griswol.l.  19  111.  631. 


§  5.].  PAROL    LEASES.  9 

After  a  lease  has  been  executed,  the  parol  promises  of 
the  landlord  to  repair  are  void  for  want  of  consideration.5 

A  parol  lease  of  premises  for  a  year,  to  commence  in 
future,  is  not  an  executory  contract  prior  to  the  time  of 
taking  possassion.  It  vests  a  present  interest  in  the  term 
and  cannot  be  rescinded  by  either  party  alone.  In  case, 
therefore,  of  a  refusal  of  the  lessee  to  perform,  the  lessor 
is  not  required  to  lease  to  another  if  he  has  an  oppor- 
tunity and  is  not  confined  to  his  remedy  for  actual  dam- 
ages, but  may  refuse  to  accept  a  rescission  and  hold  the 
lessee  liable  for  rent.'2 

Although  a  lease  may  be  void  by  the  statute  of  frauds, 
if  the  tenant  goes  into  possession  thereunder  and  remains 
for  a  time,  the  lease  may  be  looked  to  in  determining  the 
amount  of  rent  due.3 

A  parol  lease  for  one  year  is  valid,  and  if  the  tenant 
under  such  a  lease  holds  over  for  a  portion  of  another 
year  the  lessor  may  elect  to  treat  him  as  tenant  from 
year  to  year  and  recover  the  value  of  the  premises  as 
upon  a  lease  from  year  to  year.4 

A  parol  license  by  lessor  to  lessee  to  remain  in  posses- 
sion after  the  expiration  of  the  lease,  made  without  con- 
sideration, is  subject  to  revocation." 

A  verbal  agreement  changing  a  contract  under  seal  is 
valid  if  supported  by  a  new  consideration  and  not  within 
the  statute  of  frauds." 

1  Libbey  v.  Tolford,  48  Me.  316. 

-  Becar  v.  Flues,  64  N.  Y.  518. 

3 Evans  v.  Winona  Lumber  Co.,  30  Minn.  515. 

4  Shepherd  v.  Cummings,  1  Coldw.  (Term.)  354. 

5  Walker  v.  Wilson,  52  111.  352. 

8  Wilyes  v.  Whitehead,  89  Pa.  St.  131. 


10  PABOL    A.GKEEMENT    NOT    BINDING.  [  §  6. 

A  lessee  who  occupies  premises,  cannot  avoid  paying 
the  rent  agreed  upon  in  a  parol  lease  for  five  years,  made 
by  a  married  woman  without  her  husband's  concurrence. 
His  liability  for  rent  results  from  his  occupancy,  and  the 
terms  are  properly  regulated  by  a  lease  otherwise  void.1 

§  (>.  Parol  agreement  with  the  lease  not  binding — 

A  verbal  agreement  to  'give  a  lease  is  not  binding  if  any 
essential  matter  affecting  the  rights  of  the  parties — as 
here  the  time  of  commencement — is  left  open  to  future 
consideration  and  remains  unsettled.' 

The  validity  of  an  oral  modification  of  an  unsealed 
lease  agreed  to  during  the  term  of  the  lease,  if  acted  upon 
by  both  parties  appears  vet  plainer;  as  where  a  verbal 
arrangement  beino-  made  that  future  rent  under  such  a 
lease  shall  accrue  at  a  reduced  rate,  the  tenant  continues 
his  occupation  and  the  landlord  accepts  an  installment  of 
rent  at  the  reduced  rate,  giving  a  receipt  as  for  rent  in 
full. 

A  written  lease  under  seal  cannot  be  changed  by  a 
subsequent  verbal  agreement  made  during  the  existence 
of  the  lease;3  but  a  new  contract,  for  new  consideration 
may  be  made  in  the  same  matter. 

A  parol  lease  "  by  the  year  "  is  for  one  year  and  binds 
the  parties  no  longer.' 

There  may  be  a  parol  reservation  of  the  landlord's 
share  in  arrowing  wheat  from  a  written  lease,  under  which 

1  Nash  v.  Berkmeir,  83  Ind.  536. 

■-'  Sourwine  v.  Truscott,  17  Hun.  (N.  Y.),  -482:  Hallis  v.  Bums.  100  Pa. 
St.  206. 

3  Breher  v.  Reese.  17  111.  App.  545. 

4  Pleasance  v.  Claghorn,  2  Miles  (Pa.),  302. 


§  6.]  PAROL   agreement   not    binding.  11 

the  lessee  takes  possession  before  the  maturity  of  the 
crop.1 

Where  the  owner  of  certain  lands  enters  into  an  agree- 
ment with  another  person  by  which  the  last  named  party 
is  to  raise  a  crop  of  wheat,  corn  and  fodder  upon  the 
land,  the  owner  to  furnish  all  the  teams,  horses,  etc.,  all 
seed,  wheat  and  corn,  and  all  the  carts,  etc.,  and  some 
guano ;  the  second  party  to  do  all  the  labor  and  cultivate 
and  tend  the  crops,  etc.  ;  the  owner  to  have  a  certain 
portion  of  the  crop  and  the  other  person  the  residue ; 
held,  not  to  be  parol  lease.2 

Where,  since  the  amendatory  acts  of  1865  and  1867, 
relating  to  forcible  entry  and  detainer,  a  landlord  made 
a  verbal  lease  of  premises  for  two  years  and  the  said 
premises  were  occupied  under  the  same  and  the  rents 
paid;  it  was  held  that,  although  the  contract  was  not 
binding  on  the  parties  in  the  first  instance,  because  of  the 
statute  of  frauds,  yet.  having  been  executed,  no  notice 
was  necessary  to  terminate  it,  as  in  the  case  of  a  tenancy 
from  year  to  year." 

If  a  lease  in  writing  has  been  executed  purporting  to 
contain  the  whole  contract  between  the  parties,  oral  rep- 
resentations and  understandings  which  the  parties  have 
failed  to  insert  will  not,  as  already  seen,  be  added  to  the 
written  contract,  no  fraud  or  other  ground  of  equitable 
interference  being  shown.  And  an  express  covenant  or 
agreement  in  such  a  lease  on  any  particular  subject  will 
prevent  the  implication  of  a  further  or  different  covenant 

1  Hisey  v.  Troutniau,  84  Ind.  115. 

-  Currey  v.  Davis,  1  Houst.  (Del.),  598. 

3  Knecht  v.  Mitchell  67  111.  86. 


i.2  I'K'AII)    IX     LEASES.  [  §  7. 

or  agreement  on  the  same  subject;  kwall  implied  cov- 
enants," it  has  been  said,  t4are  done  away  by  express 
ones." 

There  are  some  engagements  inferred  or  implied  wt  from 
the  use  of  certain  words  having  a  known  legal  operation." 

Thus  from  the  use  in  a  lease  of  the  word  demise  or  the 
word  grant,  or  the  latin  words  coneessi  or  demisi,  the 
engagement  is  implied  for  the  lessee's  quiet  enjoyment 
during  the  term,  whether  the  lease  be  sealed  or  parol. 

^  7.  Fraud  in  leases But  if  the  lessee,  by  means  of 

the  willful  wrong  of  the  lessor,  acquire  by  the  lease  no 
right  to  possession,  he  may  recover  as  damages  for  the 
wrong,  the  difference  in  amount  between  the  rent  reserved 
and  the  annual  value  of  the  term,  together  with  what 
expenses  he  has  incurred  in  expectation  of,  and  on  the  faith 
of  the  lease. 

A  lease  not  wholly  ineffectual,  but  tainted  by  fraud  of 
the  lessor  toward  the  lessee,  such  as  false  representation 
concerning  the  quantity  of  land  comprised  in  the  premises 
leased,  may  be  rescinded  by  the  lessee  before  taking  pos- 
session, fraud  being  "a  thing  grievously  amiss,  and 
above  all  odious  to  the  law." 

The  rule  concerning  representations  is,  that  a  person 
representing  to  be  true,  of  his  own  knowledge,  what  false 
report  has  caused  him  to  believe,  is  to  be  held  to  the 
same  responsibility  as  one  representing  to  be  true  what 
he  knows  to  be  false. 

A  parol  agreement  to  vary  a  contract  under  seal  can- 
not be  pleaded  in  a  court  of  law,  to  defeat  a  recovery  on 
the  original  undertaking:  and  such  an  agreement  will 
not  discharge  a  security  from  liability.' 

1  Chapman  v.  McGrew,  20  111.  101. 


§§   8,    9.]  WHAT    MAY     BE     LEASED.  13 

It  is  not  competent  to  modify  or  change  the  terms  of 
a  lease  or  other  agreements  under  seal,  by  proof  of  a 
subsequent  parol  understanding  or  agreement.1 

Where  a  landlord,  at  the  request  of  the  tenant,  agrees 
to  reduce  the  rent  reserved  in  the  lease,  and  there  is  no 
evidence  tending  to  show  the  tenant  had  surrendered  the 
premises  or  offered  to  do  so  and  refused  to  execute  the 
terms  of  the  lease,  or  that  there  was  any  reason  why  he 
could  then  have  surrendered  the  premises  and  refused  to 
carry  out  the  lease,  such  parol  agreement  to  reduce  the 
rent  will  be  void  for  want  of  consideration  and  the  land- 
lord may  collect  the  rent  provided  for  in  the  written 
lease.2 

Where  the  landlord  agreed  verbally,  outside  the  lease, 
that  the  tenant  should  have  the  use  of  a  well  on  another 
lot,  and  the  tenant  was  deprived  of  the  use  by  reason  of 
the  acts  of  the  landlord,  it  was  held  that  this  could  not 
amount  to  an  eviction  so  as  to  defeat  the  collection  of 
the  rent,  as  the  parol  agreements  were  not  named  in  the 
lease,  but  the  tenant's  right  in  respect  to  them  grew  out 
of  a  different  contract.1 

§  8.  What  may  be  leased Anything  corporeal   or 

incorporeal,  lying  in  livery  or  in  grant  may  be  subject  of 
a  lease  for  instance,  lands,  houses,  commons,  ways, 
fisheries,  franchises,  live-stock,  goods,  chattels,  etc.4 

|  9.  Consideration Some  consideration  must  appear 

in  order  to  make  a  lease  valid,  although  this  considera- 

1  B.  &  O.  &  C.  R.  R.  Co.  v.  111.  Cent.  R.  R.  Co..  137  111.  9. 

2  Goldsborough  v.  Gable,  140  111.  269. 

3  Lynch  v.  Baldwin.  69  III.  210. 

4  Wallace  v.  Headley,  23  Pa.  St.  106;  Mickle  v.  Miles,  31  Pa.  St.  20. 


14  AGREEMENT    FOE    A     LEASE.  [§  10; 

tion  need  not  consist  of  what  is  technically  called  "  rent," 
or  a  periodical  rendering  of  compensation  for  the  use  of 
the  premises ;  it  may  be  a  sum  in  gross  or  the  natural 
affection  which  one  party  may  have  for  another ;  it  may 
consist  of  grain,  animals  or  the  personal  services  of  the 
lessee ;  and  the  promise  to  pay  rent  to  the  owner  of  the 
premises  is  a  sufficient  consideration  for  an  agreement  to 
lease  the  premises  to  a  person  making  such  promise.  * 

AVhere  one  holds  under  a  lease  for  monthly  payments, 
an  agreement  to  pay  semi-monthly  is  a  safe  consideration 
for  a  new  lease  for  less  rent.'2 

§  10.  Agreement  for  a  lease — A  clause  in  a  lease  for 
one  year,  giving  the  lessee  the  option,  on  a  certain  con- 
dition, to  renew  the  lease  for  another  year,  is  not  a 
demise  to  take  effect  at  the  expiration  of  the  first  year ; 
it  is  a  mere  covenant  or  undertaking  of  the  lessor  to  let 
the  lessee  have  a  second  term,  which  may  be  enforced  on 
bill  for  specific  performance,  or  upon  which  an  action  of 
law  may  lie  for  a  breach." 

The  privilege  reserved  in  a  lease,  permitting  the  tenant, 
on  notice,  to  extend  the  term  for  one  or  more  years,  is 
not  a  present  demise,  but  a  mere  covenant,  which  may 
be  enforced  in  chancery,  or  upon  which  an  action  of  law 
may  be  maintained.4 

A  lease  for  one  year,  providing  that  the  lessee  may 
have  the  privilege  of  renewing  the  lease  for  five  years, 
with  the  privilege   to  him  of  purchasing  the  premises, 

1  McFarlane  v.  Williams,  107  111.  33. 

3  Goldsbrough  v.  Gable,  36  111.  Ap.  363. 

3  Sutherland  v.  Goodnow  et  al.,  108  111.  528. 

4 Sexton  v.  Chicago  Storage  Co.  et  al.,  129  111.  318. 


§§11,    12.]  PRESENT    DEMISE.  L5 

etc.,  does  not  constitute  a  present  demise  of  the  premises 
for  the  extended  time,  which  can  be  enforced  in  a  court 
of  law.1 

§11.  Present  demise. — When  the  agreement  in  the 
lease  is  such  that  both  parties  are  bound  by  the  agree- 
ment that  the  lease  should  be  actually  executed,  it  con- 
stitutes a  present  demise ;  but  where  the  tenant  only  is 
bound  to  take  the  premises  and  pay  rent  for  the  one 
year,  it  does  not  constitute  a  present  demise  for  the 
extended  term.2 

Where  a  party  in  possession  of  premises  under  an 
unexpired  lease,  agreed  with  his  landlord  verbally  that  he 
should  have  the  premises  for  another  year,  commencing 
at  the  expiration  of  the  existing  term,  upon  the  same 
terms,  a  written  lease  to  be  executed,  and  a  few  days 
before  the  new  term  commenced  the  landlord  withdrew 
his  proposition  and  rescinded  the  verbal  agreement,  so 
that  there  was  no  time  before  such  rescission  that  the 
lessee  could  have  entered  under  the  verbal  agreement ; 
held,  that  this  was  not  a  present  leasing,  but  only  an 
agreement  for  a  lease." 

§  12.  Time. — When  no  date  is  fixed  for  the  beginning 
of  the  tenancy,  the  time  at  which  the  tenant  enters  into 
the  premises  is  to  be  regarded  as  the  beginning  of  the 
tenancy.4    . 

A  lease  for  w'  the  whole   time  that   the  lessee  may  be 

1  Hunter  v.  Silvers,  15  111.  174. 

-Hunter  v.  Silvers,  15  111.  174;  Tenney  v.  Child,  1  Maule  &  Sehviu, 
262. 

3Griffin  v.  Knisely,  75  111.  411. 

4  Eberlein  v.  Abel,  10  111.  App.  626. 


lt'»  KINDS    OF    TENANCY.  [  ^  13- 

pbstmaster, "  expired  with  the  commission  held  by  the 
tenant  at  the  time  the  lease  was  made. ' 

A  lease  for  ' '  as  long  as  wood  grows  or  water  runs ' ' 
conveys  a  fee." 

Kinds  of  Tenancy. 

i  13.  Tenancy  at   will A  tenancy  at   will  is  where 

one  person  lets  land  to  another,  to  hold  at  the  will  of 
the  lessor.  A  person  who  takes  possession  of  premises 
under  an  agreement  for  a  lease  but  refuses  to  carry  out 
the  agreement,  is  regarded  as  a  tenant  at  will." 

Where  parties  move  into  the  house  without  any  terms 
or  rent  agreed  on,  thev  are  mere  tenants  at  will  and  a 
demand  for  possession  will  terminate  the  tenancy. 

If  a  tenant  be  placed  on  the  land  without  any  terms 
prescribed  or  rent  reserved,  and  as  a  mere  occupier,  he 
is  strictly  a  tenant  at  will.4 

Where  a  tenant  is  let  into  the  possession  of  premises 
under  an  agreement  to  take  a  lease,  which  he  afterwards 
refuses  to  do,  he  is  a  mere  tenant  at  will  after  his  refusal 
to  make  a  lease/' 

A  verbal  lease  of  land  for  a  term  of  twenty  years,  at 
a  rental  of  one  dollar  for  the  entire  term,  is  a  tenancy  at 
will,  a  mere  license  and  not  assignable.6 

A   tenancy  at  will  at  the  common  law,  required  no 

1  Easton  v.  Mitchell,  21  111.  App.  189. 
-  Arms  v.  Burt,  1  Vt.  306. 

3Herrell  et  al.  v.  Sizeland  et  al.,  81  111.  457:  Dunne  v.  Trustees 
of  Schools,  39  III.  378. 

4  Herrell  et  al.  v.  Sizeland  et  al. ,  81  111.  457. 

5  Dunne  v.  Trustees  of  Schools,  39  111.  578. 

6  Packard  v.  C.  C.  C.  &  St.  Louis  R.  R.  Co.,  46  111.  App.  244. 


£   14.  |  KINDS    OF    TENANCY.  17 

notice   to  terminate   it;   but   the  statutory   notice   must 
generally  be  given  to  effect  a  termination    of  such  ten 
anew1 

The  interest  of  a  tenant  at  will  is  not  such  an  estate 
as  can  be  assigned." 

And  if  an  assignment  is  made,  it  terminates  the 
tenancy." 

§  14.  Tenancy  at  sufferance A  tenant  at  suffer- 
ance is  one  who  comes  into  possession  of  land  by  lawful 
title  but  holds  over  by  wrong  after  the  determination  of 
the  interest.  He  has  only  a  naked  possession  and  has 
no  estate  which  he  can  assign  or  transfer.4 

A  lessee  holding  over  after  the  expiration  of  a  tenancy 
at  will  is  a  tenant  at  sufferance.'"' 

Where  one  buys  a  lot  and  permits  another  to  occupy 
it,  under  no  particular  agreement  as  to  time,  the  latter 
is  a  tenant  at  sufferance.'1 

A  mortgagor,  after  a  foreclosure  and  sale  of  the  prem- 
ises, is  a  tenant  at  sufferance.7 

Tenants  per  auter  vie  after  the  death  of  the  cestui  que 
vie,  tenants  for  years,  whose  terms  have  expired,  tenants 
at  will,  whose  estates  have  been  determined  by  alienation 
or  by  the  death  of  the  lessor,  under-tenants  holding- 
over  after  the  expiration  of  the  original  lease  and  a  lessee 

1  Prickett  v.  Ritter,  16.  111.  96. 

-  Whittimore  v.  Gibbs,  24  N.  H.  484. 

3  King  v.  Lawson,  98  Mass.  309. 

4  Proctor  et  al.  v.  Tows  et  al.,  115  111.   138;  Coomler  v.  Hefner,  86 
Ind.  108. 

5 Cook  v.  Norton  et  al.,  48  111.  20;  Brown  v.  Smith,  83  111.  291. 
*  Proctor  et  al.  v.  Tows  et  al.,  115  111.  138. 

'  Kinsley  v.  Ames.  0  Met   (Mass.)  29:  Mason  v.  Grey,  36  Vt.  308. 
•> 


18  KINDS    OF    TENANCY.  |    §    15. 

who  agrees  to  deliyer  possession  by  a  particular  day  and 
holds  over,  are  tenants  at  sufferance.1 

A  tenant  at  sufferance  at  the  common  law  is  not  liable 
for  rent,  nor  entitled  to  emblements." 

Under  a  tenancy  at  sufferance,  the  landlord  can  term- 
inate the  relation  at  his  pleasure.1 

§  15.  Tenancy  by  the  month Where  a  party  enters 

into  possession  of  premises  under  a  verbal  letting,  which 
is  void  under  the  Statute  of  Frauds,  agreeing  to  pay 
rents  monthly,  and  pays  rent  under  the  contract  a  while, 
he  will  become  a  tenant  from  month  to  month  and  as 
such  is  entitled  to  notice  to  quit. 

A  letting  by  parol  for  a  certain  sum  per  month,  noth- 
ing being  said  about  a  vear,  constitutes  a  lease  from 
month  to  month,  and  the  fact  that  the  tenant  holds  over 
for  more  than  a  year  can  not  make  him  a  tenant  from 
year  to  year. 

Where  a  party  enters  possession  of  premises  under  a 
verbal  letting,  which  is  voidable  under  the  Statute  of 
Frauds,  agreeing  to  pay  rent  monthly,  which  he  pays  as 
it  accrues,  he  becomes  a  tenant  from  month  to  month.4 

A  person  in  possession  of  real  estate  under  a  written 
agreement  for  a  lease  for  a  longer  term  than  one  year, 
occupies  under  a  verbal  leasing  within  a  statute  of  frauds, 
and  his  tenancy  is  one  from  month  to  month/ 

1  Brown  v.  Smith.  83  III.  291. 
-Flood  v.  Flood,  1  Allen  (Mass.),  217. 

3  Dixon  v.  Haley,  16  111.  145;  Emmons  v.  Scutter,  115  Mass.  367; 
Mason  v.  Grey,  36  Vt.  30S;  Warner  v.  Hale  et  al.,  65  111.  395. 

4  Brownell  et  al.  v.  Welch,  91  111.  523. 

5  Blake  v.  Kurrus.  41  111.  App.  562. 


§16.]  KINDS    OF    TENANCY.  19 

§  16.  Tenancy  from  year  to  year. — The  reservation 
of  an  annual  rent  is  the  leading  circumstance  that  turns 
leases  for  uncertain  terms  into  leases  from  year  to  year.1 

Where  a  contract  for  a,  lease  provides  that  the  rent  is 
to  be  paid  annually,  but  "fixes  no  time  of  payment,  and 
no  contrary  usage  is  shown,  the  rent  will  be  pa}^able  at 
the  end  of  the  year." 

Where  a  person  holds  lands  or  tenements  under  a 
demise  from  another,  under  an  agreement  to  pay  an 
annual  rent,  without  any  other  provision  as  to  the  length 
of  the  term,  it  constitutes  a  tenancy  from  year  to  year; 
in  other  words,  a  tenancy  from  year  to  year  is  a  general 
letting,  without  any  limitation  as  to  time.3 

According  to  the  rule  as  held  in  England  and  many  of 
the  United  States,  a  tenancy  from  year  to  year  would 
continue  until  one  party  should  notify  the  other  six 
months  previous  to  the  end  of  the  year  of  an  intention 
to  determine  it.4  But  under  the  Illinois  statute,  sixty 
days  notice  prior  to  the  end  of  the  term  will  terminate  a 
yearly  tenancy. 

A  tenant  occupying  premises  under  a  written  lease  and 
holding  over  will  be  compelled  to  pay  the  same  rent  that 
the  lease  provided  for:  if  it  is  an  annual  lease,  and  the 
rent  to  be  paid  monthly,  the  premises  cannot  be  aban- 
doned and  the  rent  avoided,  except  at  the  end  of  the 
year.5 

1  Herrell  et  al.  v.  Sizeland  et  al.,  81  111.  457. 
-  McFarlane  v.  Williams,  107  111.  33. 

3 Gartside  et  al.  v.  Outley  et  al.,  58  111.  210:    Hunt  v.   Morton.  18 
111.  75. 
4  Walker  et  al.  v.  Ellis  et  al.,  12  111.  470. 
5McKinney  v.  Peck,  28  111.  174. 


!^(>  KINDS    OF    TENANCY,  [   §§  17.    18,    19. 

Where  a  tenant  went  into  possession  of  land  without 
any  specific  contract  for  the  payment  of  rent,  with  per- 
mission to  remain  until  spring1,  and  continued  in  possess- 
ion, raising  crops  for  two  years,  it  was  held  to  be  a 
tenancy  from  year  to  year  and  that  a  proceeding  for 
forcible  detainer,  without  notice  to  terminate  the  tenancy, 
could  not  be  sustained.1 

£  17.  Tenancy  for  life. — A  lease  for  life,  being  a  free- 
hold, can  be  created  by  instrument  under  seal,  only,  but 
a  lease  of  land  for  years  by  an  individual,  might  at  com- 
mon law,  be  made  by  mere  words,  no  particular  form  of 
expression  being  necessary, -if  words  sufficiently  declar- 
ing the  intention  of  the  lessor  were  spoken. 

^  18.  Covenants. — A  covenant  in  a  lease  is  a  stipula- 
tion that  a  certain  thing  has  or  has  not  been  or  shall  or 
shall  not  be  done ;  or  it  may  be  properly  said  to  be  an 
agreement  of  the  parties  under  seal.2 

Each  covenant  in  a  lease  belongs  only  to  the  party  who 
is  to  perform  it,  and  it  must  be  taken  as  his  language; 
but  a  covenant  in  a  lease  may  be  a  covenant  of  both 
parties. 3 

A  party  has  no  right  to  recover  under  any  contract 
until  he  has  performed  his  part  of  the  agreement,  and 
this  is  true  in  any  form  of  action  ex  rout  fact)'  and  the 
jury  alone  are  the  judges  as  to  whether  or  not  the  con- 
ditions had  been  performed  4 

§    19.    Express   covenants    in    leases.  —  The    words 

1  Hunt  v.  Morton,  18  111.  75;  Wood  Landlord  &  Tenant,  304. 
5  Randall  v.  Lynch,  2  East.  182. 

3  Olcott  v.  Dunklee,  16  Vt.  478. 

4  Harms  et  al.  v.  McCormick  et  at,  132  111.  104. 


§19.]  KINDS    OF    TKXA.WY.  21 

"demise"  or  "demised"  in  a  lease  import  a  covenant 
on  part  of  the  lessor  of  good  right  and  title  to  make  the 
lease  and  also  imply  a  covenant  for  quiet  enjoyment.1 

The  word  "demise"  in  a  lease  imports  a  legal  estate 
in  the  lessor;  if  the  tenant  be  ejected  from  the  demised 
premises  by  force  of  an  adverse  title  and  entry,  he  will 
be  discharged  from  the  payment  of  rent.2 

This  agreement  for  quiet  enjoyment,  which  in  every 
valid  lease  for  a  definite  term  of  years,  is  implied,  if  not 
expressed,  is  interpreted  as  assuring  to  the  lessee  legal 
entry,  as  well  as  enjoyment  after  entry. 

If  when  the  lessee  at  or  after  the  time  lixed  for  the 
commencement  of  the  term,  attempts  to  enter  under  the 
lease,  some  person,  not  claiming  by  an  adverse  title,  be 
in  possession,  the  agreement  is  not  thus  broken,  since 
the  legal  entiy  is  not  prevented,  and  the  lessee  may,  by 
virtue  of  his  lease,  proceed  against  the  intruder  to  obtain 
possession. 

A  lease  of  property  on  a  monthly  rental  of  $500ayear 
provided  that  on  the  determination  thereof,  by  lapse  of 
time  or  otherwise,  the  lessee  should  yield  up  immediate 
possession  of  the  premises  to  the  lessor,  and  in  case  of 
failure  to  do  so,  the  lessee  should  pay  liquidated  damages 
for  the  whole  time  such  possession  should  be  withheld, 
the  sum  of  $30  per  day.  The  lessee  held  over  105  days, 
and  the  proof  showed  that  the  rental  value  of  the  prem- 
ises was  $7,000  a  year.  Held,  that  the  lessor  was 
entitled  to  recover  and  collect  from  the  lessee  the  sum 
fixed,  in  the  lease  as  liquidated  damages. 

1  Adlard  v.  Muldoon,  43  111.  193. 

-  Wells  v.  Mason  et  al.,  4  Scam.  (111.)  81. 


22  KINDS    OF    TENANCY-.  [  §  20. 

The  fact  that  negotiations  for  a  lease  of  demised  prem- 
ises are  pending  under  an  agreement  to  extend  the  term 
of  the  original  lease,  which  negotiations  failed  and  were 
abandoned,  will  not  justify  the  tenant  in  holding  over  so 
as  to  relieve  him  from  his  covenant  in  the  lease,  to  yield 
up  to  the  landlord  the  possession  of  the  premises  at  the 
end  of  the  year.  And  this  is  so,  even  though  the  orig- 
inal lessor  may  have  received  a  check  for  the  first  month's 
rent,  pending  such  negotiations,  which  check  was  returned 
to  the  maker  on  the  failure  of  the  parties  to  agree  upon 
the  new  lease.1 

A  landlord  gave  a  tenant  a  lease  in  which  were  these 
words,  "  tenant  to  have  privilege  of  storing  a  reasonable 
number  of  cases  in  the  basement."  This  was  held  to  be, 
not  a  leasing  of  the  premises,  but  the  grant  of  a  privilege 
to  the  lessee  to  occupy  for  a  special  purpose. ? 

The  covenant  arising  from  a  "demise'"  of  premises, 
whether  express  or  implied,  only  means  that  the  lessor 
shall  have  such  title  to  the  premises  as  will  enable  him  to 
have  a  good  and  unincumbered  lease  for  the  term  demised. 
It  implies  no  warranty  against  the  acts  of  strangers.  It 
confers  upon  the  lessee  a  right  to  enter  upon  the  premises, 
but  nothing  more.3 

§  20.  Implied  covenants. — The  implied  covenant  for 
quiet  enjoyment  creates  no  obligation  on  the  part  of  the 
lessor  to  place  the  lessee  in   possession   of  the   premises. 

1  Poppers  v.  Meagher,  148  III.  192;  Bryton  v.  Marston.  33  111.  App. 
211;  Tiernan  v.  Hinman,  Hi  111.  400. 

-  Cluett  et  al.  v.  Sheppard,  131  111.  fi:!i;. 

3 Gardner  v.  Keteler,  3  Hill,  330;  Cozens  v.  Stevenson,  5  S.  &  R. 
424;  Pendergast  v.  Young.  1  Foster,  23^:  Gazzolo  v  Chambers  et  al., 
73  111.  75. 


§  20;  j  KINDS    OF    TENANCY  .  23 

If  he  is  kept  out  of  possession  by  any  act  of  the  landlord 
or  by  one  holding  paramount  title,  the  lessee  has  a  right 
of  action.  The  amount  of  damage  in  such  case  is  the 
difference  between  the  rental  and  the  actual  value  of  the 
premises  to  the  lessee.' 

The  law  will  imply  covenants  for  quiet  possession  and 
enjoyment  against  paramount  title  and  against  such  acts 
of  the  landlord  as  destroy  the  beneficial  enjoyment  of 
the  lease.2 

There  is  an  implied  covenant  on  part  of  the  tenant, 
that  he  should  commit  no  voluntary  waste  or  nuisances 
injurious  to  the  premises  and  that  farming  land  shall  be 
cultivated  in  a  husband-like  manner  and  not  in  a  manner 
materially  different  from  its  former  use.8 

The  parties  to  a  lease  may  provide  therein,  that  the 
lessee  waives  his  right  to  notice  of  an  election  to  declare 
the  term  ended,  or  for  any  demand  for  the  payment  of 
rent,  or  for  demand  for  the  possession  of  the  premises, 
and  provide  that  the  simple  fact  of  the  non-payment  of 
rent  shall  constitute  a  forcible  detainer.  Such  an  agree- 
ment is  binding  on  the  lessee,  so  that  the  action  will  lie 
upon  the  simple  proof  of  the  non-payment  of  rent 
reserved.4 

The  lessee  cannot  have  his  lease  set  aside  and  be 
released  from  his  covenants  to  pay  rent,  from  the  mere 
fact  that  a  prior  tenant,  whose  term  has  expired,  holds 
over  without  right. 

1  Gazzolo  v.  Chambers  et  al. ,  73  111.  75. 

-  Wade  v.  Halligan,  1(3  111.  507:  Berrington  v.  Casey.  78  111.  317. 
s Walker  et  al.  v.  Tucker  et  al..  70  111.  527:    Hughes  v.  Van  Stone 
24  Mo.  App.  637;  Nave  v.  Beuney,  22  Ala.  382. 
4  Espen  et  al.  v.  Hinchliffe,  131  111.  His. 


24  KINDS    OF    TENANCY.  [§21. 

The  lessee,  having  the  right  of  possession,  should  take 
legal  steps  to  obtain  the  possession  from  such  prior 
tenant.1 

§  21.  Surrender  of  leases The  tenant  cannot  sur- 
render premises  leased  to  him  before  the  expiration  of 
the  term,  so  as  to  absolve  himself  from  the  payment  of 
rent  thereafter,  without  the  consent  of  the  lessor;  and 
the  abandonment  of  the  premises,  with  notice  thereof  to 
the  lessor,  will  not  exonerate  the  lessee  thereafter  from 
his  obligation  to  pay  rent,  unless  the  lessor  assents 
thereto." 

Any  act  of  the  landlord  which  renders  the  lease  unavail- 
ing to  the  tenant,  discharges  such  tenant  from  the  terms 
and  conditions  of  the  lease,  and  he  may  abandon  it.:' 

Where  a  tenant  surrenders  his  lease  in  view  of  a  con- 
templated sale  of  his  improvements,  to  enable  the  lessor 
to  make  a  new  lease  to  the  purchaser,  the  original  lease, 
in  law,  if  not  in  equity,  is  canceled  and  the  lessor  invested 
with  the  legal  title  to  the  term,  and,  without  any  new 
writing  to  restore  the  term,  the  lessor  mav  again  lease 
and  pass  the  legal  title  free  from  the  claim  of  the  first 
lessee. 4 

The  surrender  of  a  lease  cannot  be  effected  by  the  act 
of  one  party  only  ;   the  concurrence  of  both  is  necessary.5 

Where  a  written  lease  contains  the  stipulation  that  the 
tenant  may,  after  the  expiration  of  the  term,  continue  to 

1  Field  et  al.  v.  Herrick  et  al.,  101  111.  110. 
J  Stobie  et  al.  v.  Dills,  62  111.  432. 

3  Wright  v.  Lattin  et  al.,  38  111.  293. 

4  Stewart  et  al.  v.  Munford,  91  111.  58. 
3  Lewis  et  al  v.  Fish.  40  111.  App.  372. 


?j    22.]  KINDS    OF    TENANCY.  25 

occupy  by  the  month,  but  does  not  bind  himself  to  do  so. 
each  party,  in  that  case  has  an  equal  right  after  the 
expiration  of  the  term  to  put  an  end  to  the  tenancy  by 
the  month  by  giving  the  proper  notice.' 

Where  a  tenant  had  a  written  lease,  providing  that 
"  he  should  have  the  privilege  of  a  further  lease  of  five 
years  after  the  expiration  of  his  term."  the  five  years 
elapsed  and  the  tenant  elected  to  renew.  An  action  of 
forcible  entry  and  detainer  was  brought  to  oust  him.  It 
was  held,  that  under  the  statute  amended,  appellees  had 
a  right  to  defend  under  the  covenants  in  the  lease,  pay- 
ing all  installments  of  rent  as  they  became  due.  the 
covenant  for  a  lease  being  equivalent  to  a  lease  written 
out  in  full  form.2 

§  22.  Rooms  and  lodgings.  —  There  is  another 
species  of  tenancy,  called  lodgings,  which  occurs  when 
only  part  of  a  tenement  is  let  to  another;  ami  this 
usually  consists  of  furnished  apartments.  Being  a  con- 
tract for  an  interest  in  lands,  it  is  within  the  statute  of 
frauds,  and  must,  therefore,  be  in  writing,  in  all  cases 
where  the  statute  requires  a  lease  to  be  in  writing. 
Thus,  where  the  plaintiff  took  a  house,  partly  furnished, 
at  a  certain  rent,  and  the  defendant  agreed  to  send  in  all 
other  necessary  furniture  within  a  reasonable  time,  it 
was  held  that  the  defendant's  agreement  to  send  in  the 
furniture  was  an  inseparable  part  of  a  contract  for  an 
interest  in  land,   and  ought,  therefore,  to  be  in  writing. 

But  a  contract  with  a  keeper  of  a  hotel,  or  boarding 

1  McDevitt  v.  Lambert,  80  Ala.  536. 

'-'  Eichhorn  v.  Peterson  et  al.  10  111.  App.  601. 


2(3  KINDS    OF    TENANCY.  [§22. 

house,  for  board  and  lodging,  paying-  separate  prices  for 
each,  whether  it  be  by  the  week,  month,  or  year,  creates 
no  relation  of  landlord  and  tenant  between  the  parties ; 
for  the  lodger  acquires  no  interest  in  the  real  estate,  the 
contract  being  entire  for  board  and  lodging. 

"  Lodgers  are  entitled   to  all  the  privileges  of  tenants, 
and  if  a  man  take   lodgings  on  the  first  or  second  floors 
of  a  house,  he  has  a  right  to  the  use  of  the  door-bell,  the 
knocker,  the  sky-light  of  the  staircase,   and   the  water- 
closet,  unless  it  is  otherwise  stipulated  at  the  time  of  tak- 
ing the  lodgings ;   and  if  a  landlord  deprives  a  lodger  of 
the  use  of  either,  an  action  lies.     lie  is  also,  in  general, 
subject  to  the   same   liabilities  as  other  tenants;   and  is 
not  justified  in  quitting   his   apartments   without   proper 
notice,    even    from    fear,    however   reasonable,    that  his 
goods  may  be  seized   for  his  landlord's  rent.      If  a  house 
is  divided  into  several  apartments  with  an  outer  door  to 
each  apartment,  and  no  communication   with  each  other 
subsists,  the  several  apartments  are,  for  certain  purposes, 
considered  in  law  as  distinct  mansion   houses ;    but  if  the 
owner  lives  in  the   house,  all    the  untenanted  apartments 
will  be  considered  as  parts  of  his   house.      In  general, 
however,  the  question,  what  shall  be  deemed  the  mansion 
house  of  the  party,  turns  upon  the  fact  of  their  being  an 
outer  door  or  not.      Thus,  chambers  in  inns  of  court  and 
in  cottages,  which  have  each  of  them  an  outer  door  that 
opens  upon  the  common    staircase,    have  been   held,   in 
cases  of  burglary,   to   be  the  houses    of    the    respective 
occupants.      But  this  privilege  extends  only  to  the  pur- 
poses of  protection  for  a  man   and   his  family  ;   a  bailiff, 


§22.]  KINDS    OF    TENANCY.  -_>~ 

therefore,  in  the  execution  of  mesne   process,  may  break 
open  the  door  of  a  lodger,  having  first  gained  peaceable 

entrance  at  the  outer  door  of  the  house."  ' 

A  person  who  agrees  to  take  furnished  lodgings,  but 
does  not  <'nter.  is  not  liable  to  an  action  for  use  and 
occupation." 

Letting  lodgings  is  not  a  breach  of  a  covenant  not  to 
under-let. :| 

A  verbal  agreement  to  take  ready  furnished  lodgings 
'k  for  two  or  three  years  "  is  a  contract  for  an  interest  in 
land  within  the  meaning  of  the  statute  of  frauds,  and  is 
not  valid  unless  in  writing.' 

The  distinction  between  a  boarding-house  and  an  inn 
is,  that  in  the  former,  the  guest  is  under  an  express  con- 
tract for  a  certain  time  at  a  certain  rate;  in  the  latter, 
the  guest  is  entertained  from  day  to  day  upon  an  implied 
contract.  ' 

Assuming  it  to  be  a  usage  in  lodging-houses,  that  the 
keeper,  when  the  lodger  is  about  to  quit  his  apartments, 
has  license  to  enter  and  show  them  to  strangers  who  are 
inquiring  for  lodgings,  there  does  not  arise  out  of  thai 
usage,  any  liability  on  the  keeper,  if  goods  are  then 
stolen,  for  not  using  due  and  proper  care  to  prevent  such 
persons  from  carrying  away  the  lodger's  goods  then  in 
the  apartments.6 

1  Taylor's  Landlord  and  Tenant,  Sees.  66  and  67. 
-Edge  v.  Stafford,  1  Tyr.  293;  Edge  v.  Stafford,  1   Crompton  and 
Jervis,  391. 

3  Pitt  v.  Laming.  4  Camp.  77;  Reichenbacher  v.  Pahmeyer,  8 
Bradvv.  217:  Greene  v.  Hague,  10  Bradw.  598:  Wood's  Landlord  and 
Tenant,  Sec.  539. 

4  Ely  v.  Ely,  80  111.  532. 

Willard  v.  Reinhardt.  2  E.  D.  Smith,  148. 
6  Willard  v.  Reinhardt,  2  E.  I).  Smith.  148. 


28  KINDS    OF    TENANCY.  |    §§   '!'■'>.    "24:. 

jj  23.   Who  are  lodgers A  Lodger  is  one  who  inhabits 

a  portion  of  ;i  house  of  which  another  has  the  general 
possession  and  custody.1 

The  distinction  between  a  lodger  and  tenant  seems  t<> 
be,  in  a  keeper  reserving-  to  himself  the  legal  possession, 
custody  and  care  of   the  whole  house.5 

It  is  not  easv  to  give  a  general  definition  of  the  word 
"  lodger, "  but  it  involves  more  than  the  word  "tenant:" 
there  is  a  personal  relation.  A  lodger  lodges  with  some- 
body who  has  control  over  the  house.  The  question 
whether  a  person,  is  a  lodger,  or  not,  depends  partly 
on  the  contract  between  him  and  his  landlord  and  partly 
on  the  fact  that  the  landlord  retains  control  over  the 
house.  The  lodger  has  no  interest  in  the  real  estate 
except  such  as  is  necessary  for  the  enjoyment  of  the 
apartments  rented;  he  enters  into  the  contract  with  the 
keeper  of  the  house,  who  retains  control  over  it.  Should 
a  lodger,  however,  lease  apartments  in  a  house  and  take 
full  possession  and  control  of  the  apartments  leased,  the 
relation  of  landlord  and  tenant  would  at  once  be  estab- 
lished.3 

c<  *Z\.   Who  are  tenants When  the  owner  of  a  house 

takes  a  person  to  reside  in  part  of  it,  though  such  person 
has  exclusive  possession  of  the  rooms  appropriated  to  him 
and  the  uncontroled  right  of  ingress  and  egress  :  yet.  if  the 
owner  retains  Ins  character  of  master  of  the  house,  the 
individual,  though  occupying  part  of  it.  occupies  it  as  a 

1  Bouv.  Law  Diet. 

2  White  v.  Maynard.  111  Mass.  350;   Cochrane  v.  Turtle,  75  111.  361. 

3  McMillan  v.  Solomon.  42  Ala.  356:  Richardson  v.  Richardson.  75 
Mass   213. 


§§   25,    !'•'».  |  KINDS    OP    TENANCY  .  29 

lodger  only  and  not  as  a  tenant.  The  fact  of  the  party 
having  or  not  having  the  key  to  the  outer  door  is  not 
decisive  of  the  question;  but  the  question  depends  upon 
whether  or  not  the  owner  of  the  house  resides  on  the 
premises,  retaining  his  quality  of  master  and  reserving 
to  himself  the  general  control  and  dominion  of  the  whole. 
If  he  does,  the  inmate  is  a  mere  lodger;  that  is  the  funda- 
mental proposition,  that  the  landlord  must  reserve  control 
and  dominion  over  the  house.  If  the  owner  gives  up  his 
house  to  another  person  to  live  in,  the  occupant  is  a 
tenant.  Therefore,  if  you  go  out  and  give  up  the  house 
to  him.  he  is  a  tenant  and  not  a  lodffer.1 

^  25.  Lien  on  baggage  for  board The  statute  of  1 11  i 

nois.  chap.  82,  sec.  48,  provides  as  follows:  '-Hotel,  inn 
and  boarding-house  keepers  shall  have  a  lien  upon  the 
baggage  and  other  valuables  of  their  guests  or  boarders 
brought  into  such  hotel,  inn  or  boarding-house,  by  such 
guests  or  boarders,  for  the  proper  charges  due  from  such 
such  guests  or  boarders  for  their  accommodations,  board 
and  lodgings,  and  such  extras  as  are  furnished  at  their 
request." 

If  a  lessee  of  rooms,  before  the  expiration  of  the  term . 
abandons  the  premises,  delivers  the  key  to  the  landlord's 
agent,  and  notifies  the  landlord  of  the  fact  by  letter,  and 
he,  in  reply  to  the  letter,  makes  no  objection  and  retains 
the  key,  this  will  be  sufficient  evidence  to  authorize  a 
jury  in  finding  a  termination  of  the  tenancy.3 

§  26.   Rights     of    lodgers It    is    incumbent    on    a 

hoarding-house  keeper  to  exercise  due  and    proper  care 

1  Thome  v.  Luckett,  5  C.  B.  38. 
-  Dills  v.  Stobie  et  ai..  81  111.  202. 


30  kinds  of  tenancy;  I  §  -*>. 

of  the  baggage  or  property  of  his  boarder — such  care 
as  a  prudent  person  would  take  of  his  own  property  :  and 
he(is  liable  for  the  loss  of  his  guest's  goods,  occasioned 
through  the  negligence  of  his  own  servants,  while  they 
are  acting  within  the  scope  of  their  employment.1 

There  is  no  duty  on  a  keeper  of  a  lodging-house  to  take 
care  of  his  lodger's  goods,  as  in  the  case  of  an  inn- 
keeper.2 

It  is  said  there  is  an  implied  condition  in  the  letting  of 
a  furnished  house,  that  it  shall  be  reasonably  fit  for  habi- 
tation.3 

This  is  an  exception  to  the  general  rule  that  there  is 
no  implied  warranty  on  the  letting  of  an  house  or  land 
that  it  shall  be  reasonably  fit  for  habitation  or  cultiva- 
tion, or  any  other  purpose  for  which  it  was  let.4 

Where  a  tenant  enters  into  possession  of  a  furnished 
1  louse  or  apartments,  he  may  be  compelled  to  pay  the  rent 
in  an  action  for  use  and  occupation,  and  his  goods  may 
be  distrained  by  the  landlord. 

There  is  no  presumption  from  a  general  hiring  of  lodg- 
ings and  furnished  apartments,  that  it  is  a  hiring  for  a 
year,  as  in  the  case  of  the  hiring  of  unfurnished  houses 
or  of  lands. 

If  the  rent  is  payable  weekly,  monthly  or  quarterly, 
it  will  be  a  weekly,  monthly  or  quarterly  tenancy  accord- 
ingly. 

1  Smith  v.  Reed,  52  How.  (N.  Y.)  Pr.  14. 

'-'  Holder  v.  Soulby.  6  Jur.  (N.  S  )  1031:  29  L.  J..  C.  P.  246;  8  W.  R. 
438;  C.  B.,  N.  S.  254;  Wood's  Landlord  and  Tenant,  §§  51,  53. 

Smith  v.  Man-able,  11  M.  &  W.  5;  Wood's  Landlord  and  Tenant, 
g  51 :  Taylors  Landlord  and  Tenant,  g  381,  and  note. 

•>  Wood's  Landlord  and  Tenant,  §  53. 


§§  27,    28.]  FORFEITURE    OF    LEASES.  31 

When  the  landlord  retains  general  possession,  lodgers 
are  only  responsible  for  willful  injuries  to  the  property, 
or  such  as  resulted  from  their  negligence.1 

To  create  the  relation  of  landlord  and  tenant,  there 
must  have  been  a  transfer  of  the  possession  of  land  itself, 
or  of  some  part  of  a  building  erected  upon  the  land,  such 
possession  not  being  subject  to  the  control  or  interference 
of  the  lessor,  unless  certain  privileges  be  specially  reserved 
to  him,  this  relation  does  not  exist  between  the  keeper  of 
an  hotel,  inn  or  boarding- house  and  his  guests,  lodgers  or 
boarders.      These  are  inmates,  not  tenants.2 

§  27.  Landlord  defined — "  The  word  •  landlord  '  does 
not  mean  the  lord  of  the  soil,  but  the  person  between 
whom  and  the  tenant  the  relation  of  landlord  and  tenant 
exists."  The  term  "landlord"  extends,  it  seems,  to 
every  person  whose  title  is  connected  with  and  con- 
sistent with  the  possession  of  the  occupier.3 

Forfeiture  of  Leases. 

§  28.    Nature    of    forfeitures Forfeitures   are   not 

regarded  with  any  special  favor  by  the  courts,  and  where 
a  party  insists  on  a  forfeiture,  he  must  make  clear  proof 
and  show  that  he  is  entitled  to  it.  It  is  a  harsh  way  to 
terminate  contracts,  and  he  who  insists  on  making  a 
declaration  of  forfeiture  must  be  held  strictly  within  the 
limits  of  the  authority  which  gives  the  right.  Ami 
where  the  landlord  reserved  the  right  t<>  declare  a  for- 
feiture of  the  lease  for  default   in  the  payment   of  rent, 

1  Taylor's  Landlord  and  Tenant,  sj  381. 

-Birdsall  v.  Phillips,  17  Wend.  R  464,  472:  see  Baxter  v.  West,  5 
Daly,  R.  460. 

3  Churchward  v.  Ford,  2  H.  &  X.  R.  445,  450. 


32  FORFEITURE    OF    LEASES.  [§-28. 

and  several  installments  were  unpaid,  and  the  landlord 
had  evinced  a  disposition  to  favor  the  tenant,  and  the 
tenant  relied  on  this,  it  was  held  that,  under  the  circum- 
stances, even  though  in  the  lease,  the  tenant  had  waived 
the  right  to  any  notice,  of  an  intention  of  the  lessor  to 
declare  a  forfeiture,  yet  the  tenant  should  have  notice 
before  such  declaration  could  properly  be  made. ' 

As  forfeitures  are  odious  to  the  law,  such  forfeitures 
are  never  enforced  but  upon  strict  compliance  with  all 
the  requirements  of  the  law.  All  leases  having  such 
conditions  would  be  attended  with  the  same  conse- 
quences, and  be  liable  to  be  swept  away  if  the  rent  is 
not  paid  on  the  day  it  falls  due,  notwithstanding  it  may 
owe  its  entire  value  to  the  expenditure  of  labor  and 
money  of  the  tenant.  It  is  only  reasonable  that  the 
landlord  should,  on  the  day  his  rent  falls  due,  indicate 
his  intention  to  terminate  the  lease,  and  the  tenant  have 
the  entire  day  within  which  to  make  payment.  When 
the  five  days  given  by  the  statute  expire  after  notice 
and  demand,  without  payment  of  rent  in  arrear,  the  ten- 
ancy is  terminated,  and  the  landlord  may  sue  and  recover 
possession . '"' 

To  create  a  forfeiture  under  the  act  of  1865,  for  non- 
payment of  rent,  there  must  be  a  demand  of  the  rent  and 
ten  days'  notice  to  quit,  and  a  failure  to  pay  the  rent 
before  the  expiration  of  the  ten  days;  and  the  action 
of  forcible  entry  and  detainer  will  not  lie  until  all  these 
things  take  place. 

1  Palmer  v.  Ford,  70  111.  369;  Wood's  Landlord  and  Tenant,  Sec.  518. 

2  Chadwick  v.  Parker,  44  111.  326;  Chapman  et  al.  v.  Kirby,  49  111. 
211;  Wood's  Landlord  and  Tenant,  Sees.  518,  519. 

'Woodward  v.  Cone,  73  II I.  241. 


§  29.]  FORFEITURE    OF    LEASES.  :'».'I 

The  possession  of  a  tenant  is  thai  of  the  landlord,  in 
fact  and  in  law;  and  the  claiming-  of  adverse  possession 
by  the  tenant  or  those  claiming  under  him  forfeits  the 
term  and  the  landlord  may  enter  or  bring  forcible 
detainer;  otherwise,  if  the  descent  is  cast  bv  death  of 
the  disseisor. ' 

Where  the  lessee  of  premises  has  sub-let  a  portion  of 
the  same  and  afterwards  forfeits  his  own  lease  by  non- 
payment of  rent  and  is  evicted,  an  action  of  forcible 
detainer  will  lie  by  the  landlord  against  the  sub-tenant 
to  recover  possession  of  the  portion  of  the  premises  held 
by  him,  nor  would  it  change  or  affect  the  relations  of  the 
parties  if  the  landlord  had  consented  to  the  sub-letting.2 

In  cases  of  forfeiture  of  a  lease  for  non-payment  of 
rent,  there  must  be  a  demand  at  a  fixed  time,  or  the  for- 
feiture will  not  accrue.' 

§  29.  Forfeiture  at  common  law. — At  common  law. 
in  order  to  justify  the  landlord  in  declaring  a  forfeiture 
of  the  lease  for  the  non-payment  of  rent,  a  demand  of 
the  rent  was  necessary  on  the  clay  it  became  due;  but 
the  statute  of  this  state  has  changed  the  rule,  and  a 
demand  may  be  made  any  time  thereafter. ' 

In  an  action  of  forcible  detainer  for  failure  to  pa}' 
rent,  if  the  plaint  does  not  aver  that  a  demand  for  the 
rent  was  made,  it  is  insufficient  to  support  a  judgment  of 
forfeiture. :' 

The  second  section  of    the  chapter  of  the  revised  stat- 

1  Wall  v.  Goodenough,  W  111.  415. 

-  Patchell  et  al.  v.  Johnston.  64  111.  305. 

3  Chapman  v.  Wright,  20  111.  120. 

4  Burt  v.  French,  70  111.  254. 

5  Cone  v.  Woodward.  65  111.  477. 


34  FORFEITURE    OF    LEASES.  [  §  29. 

utes,  entitled  "  Landlord  and  Tenant,"  gives  the  land- 
lord double   rent  in   case  of  a  willful   holding  over  after 

the  term  has  expired,  by  afflux  of  time,  and  not  to  a 
case  of  holding  over,  where  the  term  is  ended  by  act  of 
the  landlord  in  declaring  a  forfeiture.  In  the  latter  case, 
the  tenant  is  liable  to  no  more  than  a  fair  and  reasonable 
rent  for  the  use  and  occupation  for  the  time  he  hold's 
over. ' 

And  the  covenant  being  made  for  the  benefit  of  the 
lessor  only,  it  is  held,  that  an  assignment  made  without 
consent  is  not  void,  but  merely  voidable,  and  that  such 
sub-letting  or  assignment  contrary  to  the  terms  of  the 
lease  does  not  work  a  forfeiture  without  the  lessor  declar- 
ing to  that  effect." 

It  is  held,  that  the  evidence  fails  to  establish  a  for- 
feiture of  the  lease, — where  the  tenant  continued  on  the 
place  under  the  lease  and  precisely  as  he  did  previously, 
until  the  following  January.  Although  a  forfeiture  may 
have  been  spoken  of,  we  find  none  of  the  steps  taken  by 
the  landlord  that  are  usually  employed  to  manifest  such 
an  intention.  The  record  of  the  proceeding  was  not  pro- 
duced and  the  evidence  fails  to  show  that  there  was  any 
service  on  or  appearance  by  the  defendant." 

In  ffi vino- construction  to  the  act  <>!'  L865,  this  court 
has  said,  that  if  the  tenant  pays  the  rent  in  arrears 
within  the  ten  days  after  service  of  the  notice,  a  forfeit- 
ure of  the  lease   is   thereby    prevented."     This   was  in  a 

1  Stuart  v.  Hamilton,  (36  111.  253. 

-  Webster  etal.  v.  Nichols  et  al  ,  104  111.  160:  Eldredge  v.  Bell.  64 
la.  125. 

8  Cheney  v.  Bonnell,  58  111.  26*. 
4  Chapman  v.  Kirby,  49  111.  211. 


§  30.]  FORFEITURE    OF    LEASES.  35 

case  where  a   notice  had    been    given    to  terminate  t  lie 
tenancy  because  the  rent  had  not  been  paid. 

§  30.  Under  the  statutes. — To  create  a  forfeiture,  so 
as  to  support  the  action  of  forcible  entry  and  detainer  for 
the  non-payment  of  rent,  under  the  act  of  L865  four 
things  must  concur:  there  must  be  a  default  in  the  pay- 
ment of  rent;  a  demand  of  the  same:  a  ten  days'  notice 
to  cpiit :  and  a  failure  to  pay  the  rent  before  the  expira- 
tion of  the  ten  days'  notice.1 

A  forfeiture  of  a  lease  will  not  be  inferred,  because  there 
were  grounds  for  declaring  a,  forfeiture,  but  all  the  requi- 
site steps  must  be  taken.  A  forfeiture  cannot  be  pro- 
duced unless  there  is  a  notice  that  the  tenancy  has  ended, 
a  demand  for  possession  and  a  notice  to  quit.  The  law 
does  not  favor  such  forfeitures." 

Mere  non-payment  of  rent  does  not  authorize  the  land- 
lord to  enter  upon  and  forcibly  expel  the  tenant,  or  to 
remove  the  tenements  or  amT  appurtenances  thereto,  nor 
to  cut  off  steam  power  agreed  to  lie  supplied  to  the  tenant 
by  the  landlord  in  the  lease.3 

Rent  collected  after  re-entry  inures  to  the  benefit  of 
the  tenant.  A  provision  in  a  lease  against  a  forfeiture 
of  the  rents  to  be  paid  during  the  fall  term,  does  not 
authorize  the  lessor  to  collect  the  subsequent  rent,  both 
from  the  lessee  named  in  the  lease  and  also  from  the 
tenant  to  whom  the  lessor  may  re-let  the  premises,  but 
the  rent  due  from  the  original  lessee  is  to  be  credited 
with  such  rent  as  is  realized   from  the  re-letting.      The 

1  Cone  v.  Woodward.  65  111.  477. 
'■'  Cheney  v.  Bonnell.  58  111.  868. 
3  Chapman  et  al.  v.  Kirby,  49  111.  211. 


?>♦»  FORFEITURE    OF    LEASES.  |   £  31, 

lessor  is  entitled  to  such  sum  as  is  equal  to  the  rents 
required  by  the  tenure  of  the  lease  to  be  paid  during  the 
full  term,  and  no  greater  sum. 

If  the  liability  of  the  lessee  for  vent  accruing  after 
re-entry  by  the  lessor  may  be  inferred  from  a  provision 
in  the  lease  authorizing  the  lessee  to  re-let  for  the  benefit 
of  the  lessor,  there  can  be  no  doubt  about  the  liability  of 
the  lessee  for  such  subsequent  rent  under  an  express 
stipulation  that  the  re-entry  shall  not  work  a  forfeiture 
thereof.' 

Provisions  for  forfeiture  are  not  favored  by  the  law. 
While  no  precise  form  of  words  is  requisite  to  their  cre- 
ation the  intention  that  a  liability  to  forfeiture  shall  be 
incurred  must  be  unmistakable. 

It  is  said  that  "  in  all  cases  where  an  estate  for  years 
is  sranted  on  condition,  and  the  lease  declares  that  the 
estate  shall  cease  and  determine  on  the  breach  of  the 
condition,  without  any  clause  of  re-entry  or  other  qualifi- 
cation, the  estate  will  Ipso  facto  cease  as  soon  as  the  con- 
dition is  broken."'  But  whenever  a  lease  provides  that 
on  breach  of  any  condition  the  lessor  shall  or  may  re-enter 
and  perhaps,  generally  in  instances  where  the  provision 
for  forfeiture  relates  to  breach  of  a  duty,  which,  under  his 
lease,  the  lessee  owes  to  the  lessor,  the  estate,  on  a  breach, 
is  held  to  be  void  as  to  the  lessee,  but  as  to  the  lessor- 
voidable  only,  and  the  forfeiture  is  to  be  enforced,  if  the 
landlord  elect  to  enforce  it  at  all.  by  an  action  of  eject- 
ment.2 

^  31.   Waiver  of  forfeiture. — If  the  landlord,  know- 

Grommes  et  al.  v.  St.  Paul  Trust  Co.  et  al..  147  111.  0:34. 
Clark  v.  Jones.  1  Denio  R.  516. 


§31.]  FORFEITURE    OF     LEASES.  :',7 

ing  the  cause  of  forfeiture  by  liis  tenant,  recognizes  the 
sub-lessee  as  his  tenant,  or  receives  rent  subsequently 
accruing,  he  thereby  waives  tin'  forfeiture.1 

The  general  rule  is,  that  any  act  done  by  a  landlord 
knowing1  of  a  cause  of  forfeiture  bv  his  tenant,  affirming 
the  existence  of  the  lease  and  recognizing  the  lessee  as 
Ids  tenant,  is  a  waiver  of  the  forfeiture." 

The  acceptance  by  a  landlord,  after  his  right  of  pos- 
session was  fixed,  of  property  from  the  tenant  in  pay- 
ment of  rent  that  had  accrued,  is  no  waiver  of  his  right 
to  enter/' 

Lessor  having  declared  forfeited  for  non-payment  of 
rent,  a  lease  given  to  three'  lessees,  the  fact  that  one  is 
willing  to  give  up  the  lease  does  not  render  the  trans- 
action a  voluntary  surrender. 

Delay  of  23  days  in  declaring  a  lease  forfeited  for  non- 
payment of  rent  does  not  constitute  a  waiver  of  the  right 
of  forfeiture.4 

An  action  for  subsequent  rent,  with  knowledge  that  a 
forfeiture  has  been  incurred  by  the  breach  of  some  cov- 
enant or  condition,  operates  as  a  waiver  of  the  forfeiture. 

The  acceptance  of  an  obligation  of  inferior  or  of  an 
equal  degree  does  not  extinguish  a  prior  obligation, 
unless  such  is  the  express  agreement  of  the  parties,  and 
vent  issuing  out  of  the  realty  is  of  a  higher  obligation 
than    any    simple   contract.      The   execution   of  a    prom 

1  Webster  et  al.  v.  Nichols  et  al.,  104  111.  100. 
Williams  v.  Vanderbilt,  145  111.  288, 

3  Frazier  et  al.  v.  Caruthers  et  al.,  44  III.  App.  61. 

4  Williams  v.  Vanderbilt.  34  N.  E.  Rep.  47<>. 
Wood's  Landlord  and  Tenant.  Sec.  518. 


ATTORNMENT. 


39 


issory  note  for  rent  due  does  not   operate  as  a  waiver  of 
the  right  to  enforce  payment  by  distress.1 

The  common  law  rule,  making  it  necessary  to  demand 
the  rent  on  the  day  it  falls  due  in  order  to  declare  a 
forfeiture,  is  abrogated  in  this  State.  The  landlord  may 
forfeit  the  lease  for  non-payment  of  rent  on  any  day 
after  the  rent  falls  due." 

The  tender  of  a  certificate  of  deposit  of  fifty  dollars 
in  payment  of  forty-seven  dollars  and  seventy  cents  of 
rent  due,  if  not  objected  to  at  the  time  on  some  proper 
ground,  will  be  sufficient  to  prevent  the  lessor  from 
declaring  a  forfeiture  of  the  term  for  the  non-payment  of 
rent. 

Attomnn  nt . 

$  32.  Definition Any  act  of  the  tenant  which  recog- 
nizes a  change  of  the  person  to  whom  he  pays  the  rent  is 
an  attornment. 

Payment  of  rent  is  a  sufficient  attornment/ 

Where  a  landlord  had  leased  premises  and  before  the 
expiration  of  the  term  sold  to  a  third  party,  and  the 
tenant  bad  paid  one  or  more  installments  of  rent  to  the 
"rantee,  it  was  held,  that  such  a  payment  amounted  to 
an  attornment  and  authorized  the  grantee  to  sue  for  the 
recovery  of  the  rent. 

A    purchaser  at   a   foreclosure  sale  cannot   distrain    for 

1  Atkins  v.  Byrne.-.  71  111.  326. 

-  Williams  v.  Vanderbilt,  145  111.  238. 

3  Oswald  v.  Mpllet,  20  111.  App.  449. 

4  Walker  v.  McDonald.  28  111.  App.  643. 
Fisher  v.  Deering.  60  111.  114. 


§  33.  J  ATTORNMENT.  39 

rent  against  a  tenant  holding  under  grantors  of  the  equity 
of  redemption  unless  the  tenant  attorns  to  him.1 

If  a  tenant  should  attorn  to  another  and  is  turned  oul 
of  possession  by  forcible  detainer  by  the  person  to  whom 
he  attorns,  the  first  lessor  can  maintain  the  same  act  ion 
against  the  second  lessee.  The  latter,  in  such  case,  can 
occupy  no  better  position  than  the  tenant  under  the  flrsl 
lease.2 

§  33.  Implied    attornment. — Where  a  tenant,  after 

notice  of  a  conveyance  of  the  demised  premises  by  his 
landlord,  promises  to  pay  rent  to  the  grantee,  this  is 
sufficient  evidence  of  an  attornment." 

A  tenant  has  a  light  to  attorn  to  one  who  has  acquired 
his  landlord's  title,  but  not  to  one  who  has  acquired  a 
title  hostile  to  the  landlord,  although  it  may  be  a  better 
title. ' 

Attornment  is  an  acknowledgment  by  the  tenant  of  a 
new  landlord  after  the  transfer  of  the  premises  and  his 
agreement  to  become  the  tenant  of  the  new  landlord. 

A  tenant  who  has  received  possession  from  bis  landlord 
has  no  right  to  attorn  to  a  third  person  without  first  sur- 
rendering possession  to  his  landlord  or  obtaining  his  con- 
sent to  such  attornment.0 

1  Reed  v.  Bartlett.  9  111.  267. 
'-'Cox  v    Cunningham.  77  III.  545. 

3  Hayes  v.  Lawyer,  83  111.  182. 

4  Bailey  v.  Moore  et  al..  2\  111.  Kir,. 

5Lindley  v.  Dakin,  13  Ind.  388;  Austin  v.  Ahearn,  01  X.  Y.  ii. 
6  Leech  v.  Koenitr.  55  Mo.  -451. 


40  LEASES    MAY     BE    ASSIGNED.  |    §  34. 


CHAPTER  II. 

ASSIGNMENT  OF  THE  LEASE. 

Section  34.  Leases  may  be  assigned. 
35    Accruing  rent. 
3(5.  When  assignment  releases  from  rent. 

37.  Lease  assigned  contrary  to  its  terms. 

38.  Voidable— not  void  if  terms  disregarded. 

39.  Sub-tenants  and  their  rights. 

40.  Termination  of  sub-lease. 

41.  Leases  by  corporations. 

42.  Appurtenances. 

43.  Partnership  leases. 

§  34.  Leases  may  be  assigned. — All  leases  except  a 
lease  at  will  may  be  assigned,  if  there  is  no  restriction 
therein.1  And  even  if,  by  the  terms  of  the  lease,  an 
assignment  is  forbidden,  yet  such  an  assignment  will  not 
render  the  lease  absolutely  void,  but  only  voidable. 

A  landlord  may  assign  the  rent  to  become  due  upon  a 
lease  without  assigning  the  reversion. 

The  assignee  of  rent  to  become  due  may  maintain  an 
action  therefor  in  his  own  name." 

The  lessor  cannot  assign  a  lease  by  indorsement,  so  as 
to  give  the  assignee  such  a  legal  title  as  can  be  enforced 
in  his  name,  although  the  assignee  may.  in  that  way.' 
acquire  an  equitable  title  to  the  rents. 

An  assignee  of  a  lease  who  has  been  recognized  as  such 

1  Eldredge  v.   Bell,  64  Iowa,  125:    Robinson  v.  Berry.  21   Ga.   183;, 
Jackson  v.  Groar,  7  Cow.  (N.  Y.)  285;  Cooney  v.  Hayes.  40  Vt.  47S. 
-  Wineman  et  al.  v.  Hughson.  44  111.  App.  22. 


^  34.  |  LEASES    MAY     BE    ASSIGNED.  41 

may  sue  in  his  own  name  for  rent,  although  he  lias  no 
interest  in  the  reversion.' 

Equity  treats  the  assignee  of  a  contract,  not  assignable 
at  law,  as  the  party  in  interest,  and  will  afford  hini  relief 
in  a  proceeding  instituted  in  his  own  name. 

A  lessor  can  assign  his  interest  in  a  lease  by  an  indorse- 
ment on  it,  so  as  to  pass  the  equitable  right  to  his  assignee 
to  receive  the  rent  when  it  becomes  due.2 

The  power  to  assign  a  lease  belongs  to  every  lessee. 
unless  he  luts  been  restrained  by  the  terms  of  his  lease. 
It  is  common  to  insert  as  part  of  the  lease,  that  the  tenant 
shall  not  assign  or  underlet  the  premises  without  the 
written  permission  of  the  landlord,  accompanied  by  a 
clause  of  re-entry  in  case  of  breach.  And  while  it  seems 
reasonable  that  a  man  shall  exercise  this  restraint,  for 
the  purpose  of  selecting  such  tenants  as  he  is  satisfied  will 
take  care  of  his  property  and  pay  rent  punctually,  yet 
the  courts  of  law  do  not  favor  this  restraint.' 

Where  an  assignment  of  a  lease  for  years  was  by  parol 
and  the  assignment  void,  vet,  it  having  become  executed 
and  the  assignee  accepted  by  the  landlord  as  a  tenant. 
the  Statute  of  Frauds  has  no  application/ 

An  agreement  in  a  lease  that  the  tenant  will  "  remove 
all  rubbish  and  spalls  "  at  the  expiration  of  his  term,  runs 
with  the  land  and  is  binding  upon  the  assignee  of  such 
tenant.6 

Although  the  owner  of  real  estate  may  have  leased  the 

1  Watson  v.  Haokins,  13  la.  517. 

-Dixon  v.  Buell.  21  III.  203:  Chapman  v.  McGrew,  30  111.  KM. 

3 Church  v.  Brown.  15  Yes.  265. 

J  Bliss  v.  Gardner  et  al.,  2  111.  App.  422. 

5  Coppinger  et  al.  v.  Armstrong'.  5  111.  App.  637. 


■±•2  ACCRUING     RENT.  |   §   35. 

same,  lie  may  sell  or  convey  one  part  of  his  reversion  to 
one  person  and  the  residue  to  another,  and  the  grantee 
of  the  reversion  will  he  liable  on  his  grantor's  covenant 
to  renew  the- lease,  for  the  reason  that  such  covenants 
run  with  the  lease.      Such  a  covenant  is  divisible.1 

The  lessor  may  assign  the  lease  and  vest  the  power  in 
the  assignee  to  collect  rent  without  a  transfer  of  the 
reversion.5 

Where  a  lessor  conveys  property  pendente  lite,  his 
recovery  inures  to  the  benefit  of  the  vendee." 

§  35.  Accruing  rent. — An  unqualified  conveyance  of 
demised  premises  passes  the  rent  thereafter  to  accrue.4 

Where  land  is  sold  that  is  held  by  another  by  virtue 
of  a  lease,  the  grantee  in  the  deed  is  entitled  to  recover 
the  rents  accruing  after  the  execution  and  delivery  of  the 
deed,  unless  the  deed  or  agreement  otherwise  provide.5 

Accruing  rent,  when  not  reserved,  passes  by  the  d^cd 
to  the  grantee  on  a  sale  of  the  premises:  but  until 
attornment  by  the  tenant,  the  grantee  cannot  maintain 
a  suit  against  the  tenant  for  rent.' 

Although  the  tenant  cannot  dispute  the  landlord's 
title,  yet  in  a  suit  for  rent  he  may  show  that  he  has 
acquired  title  of  his  landlord  by  conveyance  to  him  ;  and 
it  makes  no  difference  whether  the  conveyance  is  directly 
from  the  landlord  or  from  a  trustee,  duly  authorized  to 
sell  and   convey    the  title   by  a  former   owner,    provided 

1  Leiter  v.  Pike  et  al.,  127  111.  287. 
-  Dougherty  v.  Matthews,  35  Mo.  520. 

3  Bell  v.  Bruhn,  30  111.  App.  300 

4  Disselhorst  v.  Cadogan  et  al..  21  III.  App.  179. 
6  Neill  et  al   v.  Chessen,  15  111.  App.  26G. 

*  Raymond  et  al.  v.  Kerker,  2  111.  App.  49G. 


§   36;  |         WIIKX    ASSIGNMENT    RELEASES    FROM     RENT.  4^5 

the  same  is  a  lien  prior  to  the  rights  of  the  landlord. 
Where  there  is  an  express  covenant  to  pay  rent  for  a 
term  of  years,  the  mere  acceptance  of  rent  by  the  lessor 
from  the  assignee  of  the  lessee  does  not  discharge  the 
lessee.  His  contract  continues  in  force,  notwithstanding 
he  may  have  parted  with  his  interest  in  the  estate,  unless 
tin1  lessor  enters  into  such  stipulations  with  the  assignee 
as  to  aeeept  him  as  sole  tenant  and  absolve  the  original 
lessee.' 

An  assignment  of  the  lease  by  the  lessee  does  not  dis- 
charge either  the  lessee  or  his  surety  from  the  covenants ; 
it  does  not  have  this  effect  even  when  the  lessor  recog- 
nizes the  assignment  by  accepting  rent  from  the  assignee." 

;j  3<>.   When  assignment  releases  from  rent. — Where 

a  tenant  has  assigned  his  interest  in  the  lease  and  the 
landlord  has  recognized  the  assignee  as  his  tenant  and 
accepted  rent  from  him,  the  lessee  is  no  longer  liable  to 
the  lessor  in  the  debt  for  the  rent.3 

If  there  he  not  a  substitution  of  the  assignee  in  place 
of  the  original  lessee  and  a  clear  intent  to  make  a  new 
contract  with  the  former  and  to  discharge  the  latter  from 
farther  liability  under  the  lease,  both  will  he  held  liable 
to  the  lessor. 

Where  it  is  mutually  agreed  between  parties  that  a 
lease  shall  be  surrendered,  and  a  new  one  is  thereupon 
made  with  another  party  and  the  landlord  accepts  the 
new  party  as  his  tenant,  this  will  estop  the  landlord 
thereafter  from  denying    the  surrender  of  the  first  lease. 

1  Carson  et  al.  v.  Crigler,  it  111.  App.  s:',. 

-  Gfrommes  et  al.  v.  St.  Paul  Trust  Co.  et  al..  147  111.  634. 

3  Bliss  v.  Gardner  et  al..  2  111.  App.  422. 


44  WHEN     ASSIGNMENT    RELEA8ES    FROM     KENT.        [§36. 

The  assignment  of  a  lease  by  a  tenant,  or  his  sub-letting 
the  premises,  with  the  written  assent  of  the  lessor,  when 
this  is  allowed  by  the  terms  of  the  lease,  will  not  dis- 
charge the  tenant  from  his  liability  to  pay  the  rent 
agreed  to  be  paid,  nor  his  guarantor.  And  where  the 
demised  premises  are  used  for  a  saloon,  the  sale  of  the 
saloon  by  the  tenant  and  the  taking  of  possession  by  the 
purchaser  and  the  acceptance  of  the  rent  from  the  latter 
by  the  landlord  will  not  operate  as  a  discharge  of  the 
guarantor  of  the  first  tenant  from  the  payment  of  the 
rent  thereafter  accruing.1 

In  a  suit  on  a  lease  to  recover  rent,  the  tenant  may 
show  that  the  landlord  has  assigned  the  lease  by  a  sale 
of  the  demised  premises,  or  that  he  has  been  evicted  by 
paramount  title,  which  form  exceptions  to  the  general 
rule." 

Where  a  lessee  of  an  unexpired  term  made  a  verbal 
assignment  thereof  and  put  his  assignee  in  possession, 
who  paid  the  rent  to  the  original  lessor  for  about  a  year, 
when  he  ceased  to  occupy  the  premises  and  refused  to 
pay  rent  thereafter,  and  the  lessor  brought  suit  against 
him  for  the  subsequently  accruing  rent,  it  was  held,  that 
the  statute  of  frauds  was  a  bar  to  the  action/1 

The  landlord  is  entitled  to  rent  that  had  accrued  before 
the  execution  of  the  deed  of  conveyance,  but  rent  not 
then  matured  passes  with  title  and  vests  in  the  purchaser. ' 

An  administrator  or  executor  can   not   distrain  or  sue 

1  Grommes  et  al.  v.  St.  Paul  Trust  Co.  et  al.,  147  111.  634. 
-Doty  v.  Burdick.  83  111.  473. 

3 Chicago  Attachment  Co.  v   Davis  Sewing  Machine  Co.,   142  111. 
171. 
4  < 'arson  et  al.  v.  Crigler,  it  111.  App.  83. 


I   37.  j  LEASE    ASSIGNED,     ETC.  4.'. 

for  rent  which  accrues  after  the  death  of  the  owner  of 
the  land;   the  rent  in  such  case  goes  to  the  heir. 

The  assignee  of  a  leasehold  estate  is  liable  for  the  renl 
according  to  the  terms  of  the  lease,  and  the  fact  of  his 
liability  after  the  assignment  does  not  discharge  the  lessee 
from  his  covenant  to  pay  rent.  In  ease  the  rent  is  not- 
paid  by  the  assignee  as  it  becomes  (\ur,  an  action  lies 
against  the  lessee  therefor,  and  it  makes  no  difference 
that  the  lessor  may  have  received  rent  from  the  assignee 
and  accepted  him  as  a  tenant  of  the  premises.5 

£  37.   Lease   assigned   contrary    to   its   terms A 

clause  in  a  lease  that  the  same  shall  not  be  assigned 
without  the  written  assent  of  the  lessor,  is  for  the 
benefit  of  the  lessor  only.  It  does  not  render  the  assign- 
ment, when  otherwise  valid,  absolutely  void,  but  void- 
able only  at  the  option  of  the  lessor  or  his  representa- 
tives." 

Where  a  lease  states  that  it  shall  be  binding  upon  the 
lessor,  his  heirs,  executors  and  administrators,  but  says 
nothing  about  assigns,  the  lessee  cannot  maintain  a  suit 
against  a  purchaser  of  the  house  ami  premises  from  the 
lessor  upon  a  clause  in  the  lease  binding  the  lessor  to  pay 
for  certain  fixtures.' 

The  lessor  cannot  assign  a  lease  by  indorsement,  so  as 
to  give  the  assignee  such  legal  interest  as  can  beenforced 
in  his  name,  although  the  assignee  may  in  that  way 
acquire  an  equitable  title  to  the  rents.8 

Sherman  et  al.  v.  Dutch.  16  111.  283. 
-Grommes  et  al.  v.  St   Paul  Trust  Co.  et  al..  141  HI.  634. 

3  Webster  et  al.  v.  Nichols  et  ah.  104  111.  160. 

4  Hansen  v.  Meyer  et  al.,  81  111.  321. 
J  Chapman  v.  McGrew,  20  111.  101. 


4l»  VOIDABLE — NOT    X  <  > 1 1  >    WHEN.  |    §   38. 

Where  a  reversion  in  a  lease  bas  been  conveyed  and 
the  tenant  lias  attorned  to  the  assignee,  all  the  covenants 
pass  to  the  assignee,  and  if  the  tenant  thereafter  com- 
mits a  breach  of  such  covenants,  the  assignee  alone  can 
recover  damages  therefor.1 

jj  38.  Voidable — Not  void  if  terms  disregarded. —  If 
the  landlord  has  the  right  to  declare  the  lease  forfeited 
on  account  of  assignment  and  he  accepts  the  rent  accru- 
ing after  such  assignment,  this  will  be  a  waiver  of  his 
rifi-ht  to  declare  the  lease  forfeited;  and  when  a  lessor 
once  consents  to  an  assignment,  the  restriction  is  then 
removed  forever. a 

If  the  provisions  of  a  lease  containing  such  stipulations 
are  violated  by  the  tenant,  the  landlord  may  waive  his 
right  to  deelare  a  forfeiture  of  the  lease.  In  such  case, 
the  assignment  would  be  valid.  And  in  case  the  lessee 
covenants  not  to  assign,  transfer  or  set  over  the  lease  or 
premises,  it  does  not  prevent  him  from  underletting  the 
same 

Nor  will  a  covenant  on  part  of  the  tenant,  not  to  let 
or  underlet  the  whole  or  any  part  of  the  demised  premises. 
preclude  him  from  making  an  assignment  of  his  whole 
interest. ' 

However,  authorities  are  not  agreed  cm  this  point.  In 
Den  v.  I*"**.  1  Dutch.  l>s"».  a  covenant  against  under- 
letting was  declared  to  be  a  bar  to  assignment. 

1  Scheklt  v.  Belz  et  al.,  4  111.  App.  431. 

Murrey  v.  Harway,  56  X.  Y.  347;  Chipman  v.  Emerich,  •">  C'al.  49. 
3 Jackson  v.   Silvernail.   15  Johns.   ^TS:,  Jackson  v.   Harrison.   17 
Johns.  66;   Copland  v.  Parker,  4  Mich.  660! 
4  Lvnde  v.  Hous,h.  27  Bai'b.  415. 


§39.]  SUB-TENANTS    AND    SUB-  LETTING.  47 

Sub-tenants  and  Sub-letting. 

%  39.   Sub-tenants  and  their  rights Provisions  in  a 

lease,  that  upon  the  re-entry  for  breach  of  covenants  the 
landlord  may  relet  the  premises  for  the  account  of  the 
lessee,  holding  him  for  any  deficiency,  have  been  uni- 
formly sustained.1 

A  covenant  or  clause  in  a  lease,  that  neither  the  tenant 
nor  his  heirs,  etc.,  shall  underlet  any  part  of  the  demised 
premises  or  assign  the  lease,  is  for  the  benefit  of  the 
lessor  alone.  If  he  does  not  choose  to  set-  it  up,  no  one 
else  can.2 

Where  a  lease  contains  a  clause  prohibiting  sub-letting, 
in  case  it  takes  place,  receipt  of  rent  by  the  landlord 
from  the  sub-tenant  does  not  release  the  tenant  from  his 
promise  to  pay.3 

A  tenant  cannot  sub- let  longer  than  his  present  term, 
nor  can  he  charge  his  sub-tenants  with  an  increased  rent 
by  notice  to  them  before  renewal  of  his  lease,  in  case  they 
hold  over  after  their  term  expires.4 

An  agreement  not  to  let,  set  or  demise  the  premises, 
or  any  part  thereof,  for  the  whole  or  any  part  of  the 
term,  was  held  to  restrain  an  assignment.5 

If  a  lease  provides  that  '•'  if  the  tenant  shall  assign  the 
lease,  it  shall  become  void,"  in  such  case  the  lease  is 
voidable  only  and  not  void.' 

1  Grammes  et  al.  v.  St.  Paul  Trust  Co.,  4i   111.  App.  568. 

'-'  Sexton  v.  Chicago  Storage  Co.  et  al.,  129  111   his. 

3Grommes  et  al.  v.  St,  Paul  Trust  Co  ,  47  111.  App.  568. 

i Sutherland  v.  Goodnow,  et  al.,  108  111.  528. 

5Greenaway  v.  Adams,  12  Vesey,  395. 

6Eldredge  v.  Bell,  (>4  la.  125;  Jackson  v.  Groat.  ;  Cow.  (N.  Y.)  285. 


48  SUB-TENANTS    AM)    SUB-LETTING.  [  §  40. 

Where  a  tenant,  without  license  from  the  landlord, 
takes  a  third  person  into  co-partnership  with  him  and 
lets  such  person  into  joint  possession  of  the  premises,  it 
is  not  a  breach  of  the  condition  of  the  lease  against  sub- 
letting-.1 

The  service  by  the  landlord  upon  his  tenant  of  a  five 
davs'  notice  under  the  statute,  he  having  knowledge  at 
the  time  of  a  sub-letting  which,  under  the  lease,  was 
ground  for  forfeiture,  amounts  to  a  waiver  of  the  for- 
feiture  incurred  by  such  sub-letting.2 

§  40.  Termination  of  sub  lease. — A  termination  of 
the  original  lease  does  not  always  terminate  the  sub- 
lease.  Where  a  tenant  holds  premises  under  a  lease  and 
sub-lets  a  portion  of  the  premises  to  a  third  person,  there 
being  no  restriction  in  the  lease  against  sub-letting,  and 
subsequently,  without  the  knowledge  or  assent  of  the 
sub-tenant,  surrenders  his  term  to  the  then  owners  of 
the  premises,  such  surrender  terminates  the  original  lease 
and  the  term  created  thereby  as  between  the  parties  to 
the  original  lease;  but  the  interest  and  term  of  the  sub- 
tenant  continue  the  same  as  if  no  surrender  had  been 
made.  The  original  landlord  becomes  the  immediate 
landlord  of  the  sub-tenant  with  only  such  rights  as  the 
original  lessee  would  have  had  to  the  possession  of  the 
premises  before  the  expiration  of  the  term.' 

If  a  landlord  has  alienated  the  reversion  during  the 
lease,    then   his   alienee   is   entitled    to  possession   at   its 

1  Boyd  et  al.  v.  Fraternity  Hall  Ass'n,  16  111.  App.  574. 
'-'  Frazier  et  al.  v.  Caruthers  et  al.,  44  111.  App.  61. 
Eten  v.  Luyster,  60  N.  Y.  252. 


>$  41.]  SUB-TENANTS    AND    SUB-LETTING.  49 

termination;    he  should   make  the  demand  and  brine  the 
action.1 

If  the  party  holding  over  is  a  mere  wrong-doer,  the 
right  of  the  lessee  after  the  date  tixed  for  the  commence 
men t  of  the  tenancy  is  effectual  to  dispossess  him ;  the 
landlord  is  not  entitled  to  possession  and  can  maintain  no 
action  to  recover  the  premises.  The  right  of  immediate 
possession  is  in  the  lessee  alone  and  he  must  bring  the 
action.  Therefore,  when  the  tenant  is  prevented  from 
obtaining  the  enjoyment  of  the  premises  by  a  former 
tenant  whose  tenancy  has  expired,  his  remedy  is  against 
the  latter  and  not  against  the  lessor." 

§  41.  Leases  by  corporations. — The  doctrine  that  a 
corporation  cannot  make  a  contract  except  under  a  cor- 
porate seal  is  not  in  force  in  this  state:  a  corporation 
can  make  a  lease  not  under  the  seal.3 

It  was  formerly  held,  that  a  lease  by  a  corporation 
without  the  corporate  seal  is  void.' 

.V  guardian  has  no  power  over  the  real  estate  of  his 
wards  except  to  lease  on  such  terms  as  shall  be  approved 
by  the  County  or  Probate  Court ;  without  such  approval  a 
lease  made  by  him  is,  as  to  the  minors,  wholly  inopera- 
tive. •' 

Where  land  held  by  a  tenant  for  years  is  taken  by 
condemnation  proceedings,  the  tenant  remains  liable  for 

1  Dudley  et  al.  v.  Lee,  39  111.  339. 

-  Taylor  L.  &  T.  Sec.  312;  Hatfield  v.  Fullerton.  24111.  278;  Gardner 
v.  Ketellar,  3  Hill,  330:  Cozens  v.  Stevenson.  5  S.  A:  K.  424:  Gozzolo 
v.  Chambers,  73  111.  75. 

3Coppinger  et  al.  v.  Armstrong,  8  111.  App.   210. 

4  Kinzie  v.  Chicago,  2  Scammon  (111.).  1ST. 

5  Field  et  al.  v.  Herrick  et  al..  •"">  111.  App.  54. 

4 


50  SUB-TENANTS    AND    SUB-LETTING.  |    £  ±'2. 

the  entire  rent,  according  to  the  terms  of  the  lease. 
The  condemnation  of  the  land  does  not  extinguish  the 
lease  as  between  landlord  and  tenant.1 

AVhere  the  reversion  of  leased  real  estate  is  severed  by 
the  condemnation  of  a  part  thereof  for  a  street,  the  tenant 
will  be  entitled  to  an  abatement  of  the  rent,  according  to 
the  value  of  the  several  parts  of  the  land.2 

A  lease  merges  in  the  fee,  when  they  unite  in  the 
same  person.3 

The  rent  of  a  house  occupied  as  a  residence  is  a  family 
expense  within  the  meaning  of  sec.  15,  chap.  6S,  Revised 
Statutes,  and  husband  and  wife  are  jointly  and  sever- 
ally liable  for  such  rent  and  may  be  sued  jointly  or 
separately.4 

The  possession  of  a  riparian  proprietor  is  to  the  center 
thread  of  a  given  stream  to  as  full  an  extent  as  if 
included  in  the  terms  of  the  deed  under  which  he  claims, 
and  he  may  maintain  replevin  for  sand  or  gravel  taken 
therefrom  by  a  trespasser   who   invades  that  possession. 

A  person  in  possession  of  lands  abutting  upon  a  stream 
may  maintain  forcible  detainer  against  one  who  invades 
his  possession  of  lands  acquired  by  accretion.5 

§  42.    Appurtenances Appurtenances     in     a    lease 

include  only  such  things  as    belong   to  the  realty  and  do 
not  include  personal  property.' 

1  City  of  Chicago  v.  Garrity  et  al.,  7  111.  App.  474. 

2  Leiter  v.  Pike  et  al.,  127  111.  387. 

3  Carroll  v.  Ballance,  26  111.  9. 

4  Illingworth  v.  Burley.  33  111.  App.  394;  Harrison  v.  Hill,  37  111. 
App.  32. 

5  Griffin  v.  Kirk,  47  111.  App.  258. 

s  Ottumwa  Woolen  Mills  v.  Hawley,  44  la.   57;  Scheldt  v.  Belz,  4 

111.  App.  431. 


§'4:3.]  SUB-TENANTS    AM)    SUB-LETTING.  51 

Aii  appurtenance  means  something  1  >el<  ^n^iiitr-  to  another 
thing  and  which  passes  incidentally  to  the  principal  thing. 
but  does  not  include  property  totally  disconnected  with 
the  premises. ' 

The  Statute  of  Illinois  requires  all  the  jury  to  sign  the 
verdict  in  forcible  entry  and  detainer  cases.'2 

Where  the  amount  of  rent  is  agreed  to  be  fixed  by 
appraisement  and  the  appraisers  refuse  to  act,  the  law 
will  not  permit  a  failure  of  justice  and  the  court  will 
hear  evidence  and  make  the  appraisement. 3 

Both  by  the  common  law  and  the  statute  of  this  State, 
where  a  tenant  for  life  gives  a  lease  for  a  term  of  years 
on  a  yearly  rent  and  dies  in  the  course  of  a  year,  before 
the  day  of  the  payment  of  the  rent,  the  rent  cannot  be 
apportioned  and  the  tenant  may  quit  the  premises  on 
such  death  without  liability  to  pay  any  rent  to  anyone 
after  the  last  day  appointed  for  payment.4 

j<  -1-3.  Partnership  leases. — -The  covenants  of  a  lease 
by  a  partnership  firm  are  joint  and  several  and  each 
individual  partner  is  personally  liable  thereon. 

"Every  partnership  debt,  being  joint  and  several,  it 
follows  necessarily  that  resort  may  be  had,  in  the  first 
instance,  for  the  debt  to  the  surviving  partners  or  to  the 
assets  of  the  deceased  partner.*' 

1  Scheidt  v.  Belz.  4  III.  App.  43. 
-'  Bloom  v.  Goodner,  1  111.  63. 
3  Tobey  Furniture  Co.  v.  Rowe,  is  111.  App.  -293. 
4Hoagland  et  al.  v.  Crum,  113  111.  365. 

1  Ladd  v.  Griswold.  4  Gilman,  25;  Mason  v.  Tiffany,  45  111.392; 
Silverman  v.  Chase.  Exr.,  90  111.  42:  Dunn  v.  Jalfray,  3G  Kansas,  40*. 


52  THE    ILLINOIS    STATUTE.  |    §§  44,   45. 


CHAPTER  III. 

FORCIBLE  ENTRY  AND  DETAINER. 

Section  44.  The  Illinois  Statute. 

45.  The  purpose  of  the  action  and  when  it  will  lie. 

46.  Forcible  entry  forbidden. 

47.  Definition. 

48.  Nature  of  the  actiou. 

49.  The  remedy. 

50.  Two  wrongs  in  one  name. 

^  44.  The  Illinois  Statute The  Statute  of  the  State 

of  Illinois,  on  the  subject  of  Forcible  Entry  and  Detainer. 
is  as  follows,  viz.  : 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of 
Illinois,  represented  in  the  General  Assembly,  that  no 
person  shall  make  an  entry  into  lands  or  tenements 
except  in  cases  where  entry  is  allowed  by  law,  and  in 
such  cases  he  shall  not  enter  with  force,  but  in  a  peace- 
able manner. 

cj  45.  The  purpose  of  the  action,  and  when  it  will 
lie. 

Sec.  -2.  The  person  entitled  to  the  possession  of  lands 
or  tenements  may  be  restored  thereto  in  the  manner  here- 
after provided  : 

First.   When  a  forcible  entry  is  made  thereon. 

Second.  When  a  peaceable  entry  is  made  and  the  pos- 
session unlawfully  withheld. 

Third.   When  entry  is  made  into  vacant  or  unoccupied 
lands  or  tenements  without  right  or  title. 


§  45.  |  DEMAND SERVICE RETURN.  53 

Fou Mli.  When  any  lessee  of  the  lands  or  tenements, 
or  any  person  holding  under  him,  holds  possession  with- 
out right,  after  the  determination  of  the  lease  or  tenancy 
by  its  own  limitation,  condition  or  terms,  or  by  notice  to 
quit,  or  otherwise. 

Fifth.  When  a  vendee,  having  obtained  possession 
under  a  written  or  verbal  agreement  to  purchase  lands  or 
tenements  and  having  failed  to  comply  with  his  agree- 
ment, withholds  possession  thereof  after  demand  in  writ- 
ing by  the  person  entitled  to  such  possession. 

Sixth.  When  lands  or  tenements  have  been  conveyed 
by  any  grantor  in  possession,  or  sold  under  the  judgment 
or  decree  of  any  court  in  this  State,  or  by  virtue  of  any 
sale  in  any  mortgage  or  deed  of  trust  contained,  and  the 
grantor  in  possession,  or  party  to  such  judgment  or  decree, 
or  to  such  mortgage  or  deed  of  trust,  after  the  expiration 
of  the  time  of  redemption,  when  redemption  is  allowed 
by  law,  refuses  or  neglects  to  surrender  possession  thereof 
after  demand  in  writing  by  the  person  entitled  thereto, 
or  his  agent. 

Demand — Service — Return . 

Sec  3.  The  demand  required  by  the  preceding  section 
may  be  made  by  delivering  a  copy  thereof  to  the  tenant. 
or  by  leaving  such  a  copy  with  some  person  above  the 
age  of  twelve  years,  residing  on.  or  being  in  charge  of. 
the  premises;  or  in  case  no  one  is  in  actual  possession  of 
the  premises,  then  by  posting  the  same  on  the  premises. 
When  any  such  demand  is  made  by  an  officer  authorized 
to  serve  process,  his  return  shall  bej?ri/ri<(  fn<-i>-  evidence 
of  the  facts  therein  stated;    and  if  such  demand  is  made 


54  (SHOWING    CROPS.  [§45. 

by  any  person,  not  an  officer,  the  return  may  be  sworn 
to  by  the  person  serving  the  same  and  shall  then  be 
prima  facie  evidence  of  the  facts  therein  stated.  Which 
demand  for  possession  may  be  in  the  following-  form  : 

To : 

I  hereby  demand  immediate  possession  of  the  follow- 
ing described  premises  (describing  the  same;,  which 
demand  shall  be  signed  by  the  person  claiming  such  pos- 
session, his  agent  or  attorney. 

Growing  Crops. 

Sec  4.  In  case  of  forfeiture  under  contract  of  pur- 
chase, the  purchaser  shall  be  entitled  to  cultivate  and 
gather  the  crops,  if  any,  planted  by  him  and  grown  or 
growing  on  the  premises  at  the  time  of  the  commence- 
ment of  the  suit,  and  shall  have  the  right  to  enter  for 
the  purpose  of  removing  such  crops,  first  paying  or 
tendering  to  the  party  entitled  to  the  possession  a  reason- 
able compensation  for  such  use  of  the  land  before  remov- 
ing the  crops. 

Complaint — Summons. 

Sec.  5.  On  complaint  in  writing  by  the  party  or 
parties  entitled  to  the  possession  of  such  premises  being 
filed  in  any  court  of  record,  or  with  any  justice  of  the 
peace  in  the  county  where  such  premises  are  situated, 
stating  that  such  party  is  entitled  to  the  possession  of 
such  premises  (describing  the  same  with  reasonable  cer- 
tainty), and  that  the  defendant  (naming  him)  unlawfully 
withholds  the  possession  thereof  from  him  or  them,  the 
clerk  of  such    court    or  such  justice   of   the   peace   shall 


§  45.  |  SIMMONS    FROM    COURT    OF    RECORD.  55 

issue  a  summons  directed  to  the  sheriff  or  any  constable 
of  his  county  to  execute ;  which  summons,  when  issued 
by  a  justice  of  the  peace,  may  be  substantially  in  the 
following-  form  : 

STATE    OF    ILLINOIS,  ) 
County  of  Cook,  ) 

The  People  of  the  State  of  Illinois,  to  the  Sheriff  or 
any  Constable  in  said  County — Greeting: 

You  are  hereby  commanded  to  summon 

to  appear  before ,  at ,  on  the 

day  of ,   A.   D. ,    ,   at o'clock 

m.  ,  to  answer  the  complaint  of ,  wherefore  he 

unlawfully  withholds  from  him  the  possession  of  certain 
premises  in  said  county  (describing  the  premises),  and 
hereof  make  due  return,  as  the  law  directs. 

Given   under    my    hand    this    day    of .    A. 

D.,  18... 

Summons  from  (_'<>tirt  of  Record. 

Sec.  0.  When  a  summons  is  issued  out  of  a  court  of 
record,  it  may  be  in  like  form  as  other  summons  issued 
out  of  such  court. 

Summons  from  Justice  if  Peace. 

Sec.  7.  When  the  summons  is  issued  by  a  justice  of 
the  peace,  it  shall  specify  a  certain  place,  day  and  hour 
for  the  trial,  not  less  than  five  nor  more  than  iifteen 
days  from  the  date  of  the  summons. 


56  SUMMONS    FROM    COURT.  [-§  45. 

Summons  from  ( 1ourt. 

Sec.  8.  When  the  summons  is  issued  out  of  a  court  of 
record,  the  summons  shall  be  made  returnable  on  the 
first  day  of  the  next  succeeding  term  of  said  court,  and 
if  not  served  ten  days  before  the  first  day  of  the  next 
term,  the  cause  shall  be  continued  to  the  next  term  of 
court. 

Servict  of  Summons — Return — Publication. 

Sue.  9.  Service  of  summons  shall  be  made  b}T  deliver- 
ing a  copy  thereof  to  the  defendant,  or  by  leaving  such 
copy  at  his  usual  place  of  abode,  with  some  person  of  the 
family,  of  the  age  of  twelve  years  or  upwards,  and  inform 
ing  such  person  of  the  contents  thereof.  The  manner  of 
the  service,  and  the  date  thereof,  shall  be  indorsed  on 
the  back  of  said  summons  by  the  officer  serving  the  same. 
When  service  cannot  be  had  as  provided  in  this  section, 
and  it  shall  appear  by  affidavit  or  the  return  of  the 
officer  that  the  defendant  is  not  a  resident  of  this  State, 
or  has  departed  from  this  State,  or  on  due  inquiry  can- 
not be  found,  or  is  concealed  within  this  State  so  that 
process  cannot  be  served  upon  him,  then,  if  the  suit  is  in 
a  court  of  record,  service  may  be  had  by  notice,  as  in 
case  of  attachment  in  court  of  record,  or,  if  the  suit  is 
before  a  justice  of  the  peace,  by  notice,  as  in  case  of 
attachment  before  justices  of  the  peace. 

Jury  Trial  Before  Justin  . 

Sec.   LO.    In  trials  under  this  Act  before  Justices  of  the 


£  45.]  TRIAL    EN    COURT    OP    RECORD.  .".7 

peace,  either  party  may  have  the  case  tried  by  a  jury, 
if  he  shall  so  determine  before  the  trial  is  entered  upon, 
and  will  first  advance  the  fees  of  the  jurors.  The  num- 
ber of  the  jurors  shall  be  six,  or  any  greater  number  not 
exceeding-  twelve,  as  either  party  may  desire. 

Tr'tal  in  Court  of  Record — Pleading. 

Sec.  11.  Trials  under  this  Act  in  courts  of  record  shall 
be  the  same  as  in  other  cases  at  law  in  such  courts;  pro- 
vided no  special  pleading  shall  be  required;  but  the 
defendant  may,  under  the  plea  of  "not  guilty,"  give 
in  evidence  any  matter  in  defense  of  the  action. 

Default — Trial  Ex  Parte. 

Sec.  12.  If  the  defendant  does  not  appeal*  (having 
been  duly  summoned  as  herein  provided),  the  trial  may 
proceed  ex  parte,  and  may  be  tried  by  the  justice  of  the 
peace  or  judge  of  the  court,  without  the  intervention  of 
a  jury. 

Plaintiff  Entitled  to  Whole  Premises — Judgment — Execu- 
tion  (  fOStS. 

Sec.  13.  If  it  shall  appear  on  the  trial  that  the  plaint- 
iff is  entitled  to  the  possession  of  the  whole  of  the  prem- 
ises claimed,  he  shall  have  judgment  and  execution  for 
the  possession  thereof  and  for  his  costs. 

Plaintiff    Entitled    to     Part Judgment — Execution— 

( (osts. 

Sec.  14.  If  it  shall  appear  that  the  plaintiff  is  entitled 
to  the  possession  of  only  a  part    of  the  premises  claimed. 


58  SEVERAL    OCCUPANTS.  |   §  45. 

the  judgment  and  execution  shall  be  for  that  part  only 
and  for  costs,  and  for  the  residue  the  defendant  shall  be 
found  not  guilty. 

Several   Occupants. 

Sec.  15.  Whenever  there  shall  have  been  one  lease  for 
the  whole  of  certain  premises,  and  the  actual  possession 
thereof,  at  the  commencement  of  the  suit,  shall  be  divided 
in  severalty  among  persons  with,  or  other  than,  the  lessee. 
in  one  or  more  portions  or  parcels,  separately  or  sev- 
erally held  or  occupied,  all  or  so  many  of  such  persons. 
.with  the  lessee,  as  the  plaintiff  may  elect,  may  be  joined 
as  defendants  in  one  suit,  and  the  recovery  against  them. 
with  costs,  shall  be  several,  according  as  their  actual 
holdings  shall  respectively  be  found' to  be. 

Non-suit — Deft  ndant  Recovers  ( 'osts. 

Sec.  16.  If  the  plaintiff  is  non-suited,  or  fails  to  prove 
his  right  to  possession,  the  defendant  shall  have  judgment 
and  execution  for  costs. 

Dismissal  as  to  Part — Tudgment  as  to  Part. 

Sec.  IT.  The  plaintiff  may  at  any  time  dismiss  his 
suit  as  to  any  one  or  more  of  the  defendants,  and  the  jury 
or  court  may  find  any  one  or  more  of  the  defendants 
guilty  and  the  others  not  guilty,  and  the  court  shall 
thereupon  render  judgment  according  to  such  finding. 

Appeal — Writ  of  Restitution — Bond. 

Sec.  18.    If  any  party  shall  feel  aggrieved  by  the  ver- 


«j  45.  I  defendant's   appeal   BOND.  59 

diet  of  the  jury  or  decision  of  the  court,  upon  any  trial 
had  under  this  Act,  such  party  may  have  an  appeal,  to 
be  taken  to  the  same  courts,  in  the  same  manner,  and 
tried  in  the  same  way  as  appeals  are  taken  and  tried  in 
other  cases.  Provided,  the  appeal  is  prayed  and  bond  is 
filed  within  five  (5)  days  from  the  rendition  of  the  judg- 
ment, and  no  writ  of  restitution  shall  be  issued  in  any 
case  until   the  expiration  of  five  days. 

Defendant? 's  Appeal  Bond — New  Bond*. 

Sec.  19.  If  the  defendant  appeals,  the  condition  of  the 
bond  shall  be,  that  he  will  prosecute  such  appeal  with 
effect  and  pay  all  rent  then  due  or  that  may  become  due 
before  the  final  determination  of  the  suit,  and  also  all 
damages  and  loss  which  the  plaintiff  may  sustain  by  rea- 
son of  the  withholding'  of  the  premises  in  controversy 
and  by  reason  of  any  injury  done  thereto  during  such 
withholding',  until  the  restitution  of  the  possession 
thereof  to -the  plaintiff,  together  with  all  costs  that  may 
accrue  in  case  the  judgment  from  which  the  appeal  is 
taken,  is  affirmed  or  appeal  dismissed;  which  said  bond 
shall  be  in  sufficient  amount  to  secure  such  rent,  damages 
and  costs,  to  be  ascertained  and  fixed  by  the  court.  And 
the  court  in  which  the  appeal  may  be  pending  may  require 
a  new  bond  in  a  larger  amount,  if  necessary,  to  secure 
the  rights  of  the  parties;  and  in  case  of  continuance,  may 
require  another  bond  to  be  given  to  further  secure  the 
same. 

Plaintiffs  Appeal  Bond. 
Sec.  20.    If  the  plaintiff  appeals,  the  condition  of  the 


60  REPEAL.  |  ^§  40,  47 

bond  shall  be,  as  in  other  cases  of  appeal,  when  taken 
by  the  plaintiff,  except  as  otherwise  provided  by  law. 

Repeal. 

Sec.  21.  Chapter  43  of  the  Revised  Statutes  of  1845, 
entitled  "  Forcible  Entry  ami  Detainer."  and  an  Act 
entitled  "An  Act  in  regard  to  forcible  entry  and 
detainer."'  approved  April  10,  ]s7l\  and  all  other  Acts 
and  parts  of  Acts  inconsistent  with  the  provisions  <>t 
this  Act.  are  hereby  repealed,  except  as  herein  re-enacted  :' 
Provided,  that  this  section  shall  not  be  so  construed  as 
to  affect  any  rights  existing  or  actions  pending  at  the 
time  this  Act  shall   take  effect. 

^46.  Forcible  entry  forbidden — Sectiom  1.  Be  it 
enacted  by  the  people  of  the  State  of  Illinois,  represented 
in  the  General  Assembly,  that  no  person  shall  make  an 
entry  into  lands  or  tenements  except  in  cases  where 
entry  is  allowed  by  law,  and  in  such  cases  he  shall  not 
enter  with  force,  but  in  a  peaceable  manner. 

§  47.  Definition. — Originally,  by  the  common  law.  it 
was  allowable  for  every  person  disseised  or  turned  out  of 
possession,  unless  the  right  had  been  forfeited  by  neglect 
or  other  circumstance,  to  forcibly  take  possession  of  the 
lands  from  which  he  had  been  so  wrongfully  ousted.  But 
this  course  was  found  very  prejudicial  to  the  public- 
peace,  and  it  was  found  necessary  to  enact  statutes  to 
restrain  all  persons  from  the  use  of  such  violent  methods 
of  doing  themselves  justice — and  with  much  greater 
reason  where  the  party  seeking  redress  may  have  no  jus- 
tice in  his  claim — and  it  became  the  law  as  early  as  the 
year  1380(5  Rich.   II.    St.   1.  Chap.  8)   that    all  forcible 


S  47.1  DEFINITION.  6 1 

entries  were  punished    by    imprisonment   ;it  the   king's 

will. 

The  injury  to  be  redressed  is  the  ouster  or  dispossession 
of  ;i  freehold  or  chattels  real  by  disseisin.  "  Disseisin  is 
a  wrongful  putting  out  of  him  that  is  seised  of  a  free- 
hold." Whatever  may  be  the  nature  of  the  ouster  or 
dispossession  or  detainer,  the  party  entitled  to  possession 
has  no  right  to  use  force  to  dispossess  the  occupant. 
The  Supreme  Court  has  held  in  Doty  v.  Burdich,  83  HI. 
Reps.  477,  as  follows:  Under  our  law.  whatever  it  may 
be  in  other  jurisdictions,  the  landlord  has  no  right  to 
take  the  law  into  his  own  hands  and  employ  force  ami 
use  violence  to  regain  possession,  although  such  posses- 
sion may  be  wrongful.  It  would  lead  to  violence,  if  not 
to  bloodshed,  and  hence  won  1<1  be  contrary  to  sound 
policy,  and  is  forbidden.1 

A  party  in  peaceable  possession  of  land  can  not  be 
forcibly  expelled.  The  motives  of  a  party  who  expels 
another  are  immaterial;  the  owner  of  land  is  liable  in 
forcible  entry  and  detainer,  if  he  makes  a  forcible  entry 
on  the  actual  possession  of  the  plaintiff." 

So  that  the  only  lawful  way  of  obtaining  possession  of 
property  wrongfully  withheld  from  the  owner,  is  by  the 
action  of  forcible  entry  and  detainer,  as  it  is  called,  or 
by  the  action  of  ejectment. 

Ejectment  is  the  action  when  the  title  is  brought  into 
question;    but  when  the  possession    and    right  of  posses- 

!  Reeder  et  al.  v.  Purdy  etux.,  41  111.  284;  Page  et  al.  \.  De  Puy, 
40111.  506;  Farwell  et  al.  v.  Warren,  ">1  111.  !<>?:  Baker  v.  Hays.  28 
111.  387. 

Huftalinv.  Misner,  70  111.  305;  VVestcott  v.  Arbuckle  et  al..  L2 
Bradw.  579;  Doty  v.  Burdick.  83  111.  47:;. 


t)2  NATUKE    OF    THE    ACTION.  |    £  48. 

sion  are  the  only  questions  to  be  tried,  the  action  of 
forcible  entry  and  detainer  is  the  remedy  most  appropri- 
ate and  expeditious. 

While  the  action  of  forcible  entry  and  detainer,  as  now 
used,  is  not  a  common  law  action,  yet  it  is  an  action  at 
law  relating  to  real  property. 

§  48.  Mature  of  the  action. — Forcible  entry  and 
detainer  is  essentially  an  action  given  to  protect  actual 
occupation  of  real  estate  against  unlawful  and  forcible 
invasion,  to  remove  occasion  for  acts  of  violence  in 
defending  such  possession  and  to  punish  a  breach  of  the 
peace  committed  in  the  entry  upon  or  the  detainer  of 
real  property.1 

Forcible  entry  and  the  unlawful  holding  of  possession 
of  lands  and  tenements  has  been  regarded  as  an  offense  of 
such  serious  nature,  that  in  many  states  it  has  been  indict- 
able and  in  all  of  the  states  the  laws  respecting  it  are 
very  stringent,  usually  providing  for  the  trial  of  the  right 
of  possession  with  the  least  delay  consistent  with  justice. 
And  while  this  is  true,  the  Roman  Civil  Law  and  the 
laws  of  many  of  the  states,  in  their  anxiety  to  preserve 
the  peace,  forbid  that  even  the  owner  of  property  should 
take  possession  of  the  same  by  violence,  illustrating  that 
the  liberty  of  the  use  and  enjoyment  of  the  property  of 
the  American  citizen  is  a  liberty  regulated  by  law. 

The  main  object  of  this  action  is  to  preserve  the  public 
peace  and  prevent  parties  from  asserting  their  rights,  real 
or  supposed,  by  force  and  violence.  The  action  will  lie 
irrespective  of  the  question  as  to  whether  the  defendant 
had  the  legal  right  to  possession  or  a  right  of  entry,  the 

1  Dotson  v.  The  State,  6  Coldw.  (Term.)  545. 


§  49.]  THE    REMEDY.  »',:; 

gist  of  the  action  being  the  entry  and  detainer  by  force 
and  violence  and  the  ousting  from  a  peaceable  possession. 
contrary  to  law.1 

In  the  State  of  Illinois,  the  action  of  forcible  entry 
and  detainer  has  been  changed  to  a  civil  proceeding.2 

The  action  of  forcible  detainer,  while  it  is  not  a  com- 
mon law  action,  is  an  action  at  law  relating  to  real 
property.3 

In  the  States  generally,  the  criminal  remedy  has  fallen 
into  disuse  and  the  civil  one  alone  is  in  vogue.4 

In  this  State  the  Supreme  Court  said  the  action 
of  forcible  entry  and  detainer  is  purely  a  civil  remedy, 
the  sole  object  of  which  is  to  regain  a  possession 
which  has  been  invaded,  and  the  only  judgment  that 
can  be  rendered  is,  that  the  plaintiff  have  restitution 
of  the  premises  of  which  he  has  been  Unjustly  deprived.5 

§  49.  The  remedy But  generally  the  remedy  for  this 

offense  is  twofold;  by  indictment  at  common  law  and  by 
proceedings  under  the  several  statutes  relating  to  forcible 
entry  and  detainer.  The  common  law  remedy  is  purely 
criminal  in  its  nature,  but  the  action  under  the  statute  is 
a  civil  remedy.  Thus  we  find  it  said,  that  the  common 
law  affords  no  civil  remedy  against  a  person  who,  having 
a  right,  enters  forcibly,  but  the  injured  party  must  apply 
to  the  statutory  action  of  forcible  entry  and  detainer." 

The  civil  and  criminal  remedy  cannot  be  pursued  in 

1  Reeder  et  al    v.  Purely  et  al.,  41  111.  279. 
-  Thompson  v.  Sornberger,  59  111.  326. 
-  3*St.  Louis  National  Stock-Yards  v.  Wiggins  Ferry  Co.,  102  111.  514. 
J  2d  Whart.  Cr.  L  ,  sec.  1083. 

5  Robinson  v.  Crummer,  5  Gilman  (111.),  218. 

6  Robinson  v.  Crummer.  5  Gilm.  (111.)  218;  Tucker  v.  Phillips,  2 
Metcalf  (Ky.),  416. 


ti4  TWO    WRONGS    IX    ONE    NAME.  [§50. 

the  same  proceeding:  that  is.  a  writ  of  restitution  can- 
not be  awarded  on  conviction  in  a  criminal  case,  but  gets 
its  authority  by  virtue  of  the  statutory  proceeding.1 

Where  the  remedy  has  not  been  changed  by  statute, 
an  indictment  maybe  supported  at  common  law  for  a 
forcible  entry  and  detainer,  but  to  justify  an  indictment, 
it  -corns  the  entry  must  appear  to  have  been  accompanied 
by  a  breach  of  the  peace." 

5  50.  Two  wrongs  in  one  name. — A  forcible  entry  is 
defined  to  be  the  offense  or  wrong  of  taking  possession, 
by  exercise  of  strength  or  compulsory  power,  of  lands  or 
tenements  against  the  will  of  the  person  entitled  to  the 
possession  and  without  authority  of  law.  AVhile  the 
two  wrono-s  of  forcible  entrv  a*nd  forcible  detainer  are 
distinguishable  in  their  nature,  thev  are  usually  con- 
neeted  under  one  name.  The  degree  of  force  and  the 
particular  wrongs  necessary  to  support  the  action  are 
regulated  to  a  great  extent  bv  the  statutes  of  the  various 
States. 

A  forcible  detainer  is  defined  to  be  the  offense  of 
keeping  possession  of  real  property  by  strength  and  by 
arrangement  to  exclude  the  adverse  claimant,  and  with- 
out  authority  of  law.  A  forcible  detainer  may  take 
place  either  after  a  forcible  or  a  peaceable  entry. 

The  action  of  forcible  entry  and  detainer,  or  forcible 
detainer,  being  a  special  statutory  proceeding,  summary 
in  its  nature  and  in  derogation  of  the  common  law,  must 

1  State  v.  Walker.  5  Sneed  (Term.),  259. 

-  Commonwealth  v.  Shattuck.  4  Cush.  141:  Rex  v.  Nichols,  1  Ken- 
yon,  512. 

:;  Abbott's  Law  Dictionary.     1  Bishop,  Criminal  Law.  Sec.  536. 


§   •~,,).  TWO    WRONGS    IX    ONE    NAME.  ('.,", 

be  strictly  pursued,  otherwise  the  proceeding  is  coram 
it  on  judice.1 

The  action  of  forcible  entry  and  detainer  abates  upon 
the  death  of  a  party  during  its  pendency.2 

Forcible  entry  and  detainer  are  in  substance  and  in 
principle  but  one  offense  and  are  treated  of  in  the  books 
together  as  "  Forcible  Entry  and  Detainer;"  but  they 
are  distinct  and  different  acts.  The  forcible  entry  was 
an  offense  at  common  law  and  the  detainer  is  punishable 
by  statute  only.3 

In  Arkansas,  forcible  entry  and  detainer  is  a  tort, 
pure  and  simple.  Force  is  the  gist  of  the  action.  The 
remedy  is  designed  to  protect  the  actual  possession, 
whether  rightful  or  wrongful.4 

1  French  v.  Miller,  126  111.  611. 

2  Havens  v.  Bickford,  9  Humph.  (Term.)  678. 

3 Commonwealth  v.  Toram,  2  Pars.  (Pa.)  Sel.  Cas.  411. 
4.Tohnson  v.  West,  41  Ark,  535. 


(56  WHEN     ACTION     WILL     LIE. 

CHAPTER  IV. 

WHEN  THE  ACTION  WILL  LIE. 

Second.— 

Section  51.  Statutory  provisions. 

52.  What  force  necessary. 

53.  When  the  owner  may  enter  peaceably. 

54.  Peaceable  entry  defined. 

55.  Who  liable  in  this  action. 

56.  What  constitutes  forcible  entry. 

57.  Detention  after  demand  unlawful. 

58.  Actual  force  not  necessary. 

Third.— Fok  Entry  Upon  Vacant  Lands. 

59.  The  action  will  he  for  entry  upon  vacant  lands. 

60.  Owner  deemed  to  have  possession. 
Fourth.— Against  a  Tenant  Holding  Over. 

61.  The  fourth  cause  of  action. 

62.  Possession  by  fraud. 

63.  Sub-tenants. 

64.  Holding  over  after  term  expires. 

65.  Possession  under  lessee. 

06    What  complaint  must  show. 

67.  Conclusive  possession. 

Fifth.— Against  a  Purchaser  Who  Fails  to  Com- 
ply With  the  Contract  of  Purchase. 

68.  The  fifth  statutory  cause  of  actiou. 

69.  Who  may  sue  under  this  clause. 

70.  What  necessary  to  give  jurisdiction. 

71.  Growing  crops. 

Sixth.— Where  the  Premises.Have  Been  Sold 
at  Judicial  Sale. 

72.  The  sixth  cause  of  action. 


-\:£3^r7XDlds, 


§  51.]  STATUTORY    PBOVI8ION6.  67 

SECTION  !■>.  When  right  first  given. 

74.  Detention  of  premises  after  sale. 

75.  Against  whom  suit  brought. 
70.  Demand  necessary. 

77.  The  proof  necessary. 

78.  Judicial  sales. 

79.  What  steps  necessary  to  recover  under  this  clause. 

§  51.  Statutory  provisions. 

Sec.  "2.  The  person  entitled  to  the  possession  of  lands 
or  tenements  may  be  restored  thereto  in  the  manner  here- 
after provided  : 

First —  When  a  Forcible  Entry  is  Made  Thereon. 

In  law,  the  phrase  "  forcible  entry  "  means  the  unlaw- 
ful and  violent  entry  and  taking  possession  of  lands  or 
tenements  with  actual  force  or  violence. 

A  forcible  entry  and  detainer  is  a  violent  taking-  and 
keeping  possession  by  one  of  any  lands  and  tenements 
occupied  by  another,  by  means  of  threat,  force  or  arms, 
and  without  authority  of  law.1 

A  party  claiming  the  possession  of  lands  and  tenements 
should  not  take  them  ''with  strong  hand  nor  with  a 
multitude  of  people;''  even  the  owner  of  land  is  liable 
in  forcible  entry  and  detainer  if  he  makes  a  forcible  entry 
upon  the  actual  possession  of  the  plaintiff." 

Although  a  landlord  is  wrongfully  kept  out  of  posses- 
sion, he  has  no  right  to  resort  to  force  to  effect  an  entry. 
Such  an  entry  is  unlawful,  and  being  so,  an  action  for 
trespass  will  lie.3 

1  1  Bouv.  Diet.  598;  4  Black.  Com.  148. 
•'  Huftalin  v.  Misner,  70  111.  205. 
3  Wilder  et  al.  v.  House,  48  III.  279. 


68  WHAT    FORCE    NECESSARY.  [   ^   52. 

In  Missouri,  any  person  who  shall  enter  upon  any 
lands  with  force  or  strong  hand,  shall  be  deemed  guilty 
of  a  forcible  entry. 

The  fact  that  the  tenancy  of  a  house  has  terminated 
and  the  tenant  has  promised  to  leave  on  a  particular  day. 
does  not  justify  the  landlord  under  the  statute  in  putting 
him  out  by  force;  but  if  the  tenant  leave  the  house  with 
his  family  and  furniture  and  lock  the  door,  the  landlord 
may  break  into  his  own  house  without  violating  the 
statute.  But  in  case  the  tenant  is  only  temporarily 
absent,  he  would  not  have  the  right  to  break  open  the 
door. 2 

Expulsion  by  force,  without  resort  to  legal  process,  of 
an  occupant  of  the  premises  is  illegal. 

§  52.  What  force  necessary. — On  the  question  of 
what  constitutes  a  forcible  detainer,  it  has  been  held, 
that  the  mere  act  of  nailing  up  the  door  of  an  house  does 
not  amount  to  retaining  forcible  possession  of  it.3 

In  cases  where  the  remedy  has  been  extended  by  stat- 
ute to  include  tenants  holding  over,  grantors  and  vendors 
refusing  to  yield  possession,  the  force  required  to  con- 
stitute a  forcible  detainer  is  constructive  only  and  all 
that  is  necessary  is  that  the  tenant,  grantor,  or  other 
person  having  possession  refuses  to  yield  it  to  the  person 
entitled  thereto  after  his  right  to  it  has  been  duly  termi- 
nated or  parted  with.4 

To  constitute  a  forcible  entry    and  detainer  under  the 

1  Emerson  v.  Sturgeon,  59  Mo.  404. 

•  Hillary  v.  Gay,  6  C.  &  P.  284;  Mason  v.  Powell,  38  N.  J.  576. 

8  Hopkins  v.  Buck,  H  A.  K.  Marsh,  110. 

4  Doty  v.  Burdick,  83  111.  473:  Davis  v.  Woodward.  19  Minn.  187. 


I   53.  !  WHEN    OWNER    MAY    ENTER.  »>'.' 

statute,  actual  force  is  not  necessary.1  '  Originally,  actual 
force  was  necessary.' 

To  constitute  forcible  entry  and  detainer,  violence  is 
not  essential,  and  entry  against  the  will  of  another  is 
forcible  in  legal  contemplation.8 

§  53.  When  the  owner  may  enter  peaceably. — The 

owner  of  land,  having  the  present  right  of  immediate 
possession,  may  enter  the  same  peaceably,  though 
occupied  by  another,  without  becoming  a  trespasser.3 

In  this  State  it  has  been  constantly  held,  that  any 
entry  is  forcible  within  the  meaning  of  the  law  that  is 
made  against  the  will  of  the  occupant.  The  language 
of  the  Supreme  Court  is  as  follows:  "  We  state,  then, 
after  a  full  examination  of  this  subject,  that  in  our  opin- 
ion the  statutes  on  forcible  entry  and  detainer  should  be 
construed  as  taking  away  the  previous  common  law  right 
of  forcible  entry  by  the  owner,  and  that  such  entry  must 
be  therefore  held  illegal  in  all  forms  of  action."' 

The  use  of  force  and  violence  is  an  offense  of  itself, 
for  which,  he  who  uses  it  may  be  indicted  and  punished. 
Whatever  may  be  the  legal  rights  of  the  parties,  the 
lawfulness  of  the  entry  in  no  wise  excuses  the  violence 
used  to  obtain  the  possession.' 

There  is  a  distinction  between  cases  where  the  original 
entry  was  forcible  and  those  where  it  was  peaceable 
and     the    detention     alone    is    wrongful    and     tortious. 

Atkinson  v.  Lester  et  al.,  2  111.  407:  Bloom  v.  Goodlier,  1  111.  63. 
2Croff  v.  Ballinger,  18  111.  200. 

3  City  of  Bloomington  et  al.  v.  Brophy,  32  111   App.  400. 

4  Reeder  et  al.  v.  Purely  et  u.\..  41  111.  279. 
Commonwealth  v.  Kensey,  2  Pars.  (Pa.)  Sel.  Cas.  401. 


70  FORCIBLE    ENTRY     DEFINED.  [  §  54. 

Where  the  entry  is  forcible,  the  right  of  entry  is  com- 
plete as  soon  as  the  entry  is  made  in  the  person  whose 
possession  is  thus  tortiously  invaded ;  but  where  the 
entry  is  made  peaceably  and  without  force,  it  is  the 
detention  alone  that  is  unlawful  and  tortious  and  no  right 
of  action  exists  until  after  demand  for  possession.1 

§  54.  Forcible  entry  defined. — Originally  a  forcible 
entry  was  where  the  possession  of  plaintiff  was  invaded 
by  force ;  but  it  is  not  now  necessary  to  give  the  right 
of  action,  that  any  actual  force  should  be  resorted  to, 
the  Supreme  Court  having  uniformly  held  that,  in  an 
action  of  forcible  entry  and  detainer,  or  in  a  forcible 
detainer,  constructive  force  only  is  necessary.  A  mere 
wrongful  entry  or-  wrongful  holding  over  only  is  required  ; 
as  in  that  case,  as  soon  as  the  detention  becomes  illegal, 
it  is,  in  contemplation  of  law,  forcible.'2 

Of  course,  in  a  forcible  invasion  of  the  rightful  pos- 
session, the  offense  is  consummated  as  soon  as  the  entry 
is  made,  and  at  that  moment  the  right  of  action  vests  in 
the  party  entitled  to  possession.  Where  a  person  entered 
upon  the  possession  of  another  without  his  consent,  and 
by  removing  the  fence  and  resetting  the  same,  took  'pos- 
session of  a  strip  or  parcel  thereof,  it  is  a  forcible  entry 
under  the  terms  of  the  statute  and  sufficient  to  support 
the  action.3 

Where  the  entry  is  lawful  and  the  possession  is  unlaw- 
fully detained,  as  in  case   of  landlord   and   tenant,  then 

1  Thomasson  r.  Wilson,  46  111.  App.  35»s. 

-  Dudley  et  al.   v.  Lee,  39  111.   342:  Doty  v.   Burdick,  83  111.   4;:'.: 
Smith  v.  Hoag.  45  III.  250. 
3Coverdale  v.  Curry,  48  111.  App.  213. 


§   55.  |  WHO     LIABLE    IN    Tills    ACTION.  71 

the  right  of  action  vests  in  the  rightful  landlord,  as  soon 
as  the  tenant's  right  of  possession  ceases  under  his  lease. 
Or.  in  case  of  an  alienation  by  the  landlord  during  the 
existence  of  the  lease,  then  the  grantee  of  the  landlord 
is  entitled  to  possession  by  operation  of  law,  on  the  deter- 
mination of  the  lease,  and  the  right  of  action  vests  in 
him. 

Every  entry  against  the  will  of  the  occupant  is  forcible 
in  the  meaning  of  our  statute.1 

The  owner  of  real  estate  has  a  right  to  enter  upon  and 
enjoy  his  own  property  if  he  can  do  so  without  a  forcible 
disturbance  of  the  possession  of  another;  but  the  peace 
and  good  order  of  society  require,  that  he  shall  not  be 
permitted  to  enter  against  the  will  of  the  occupant,  and 
hence  the  common  law  right  to  use  all  necessary  force 
lias  been  taken  away.  His  remedy  must  be  sought 
through  those  peaceful  agencies  which  a  civilized  com- 
munity provides  for  all  its  members.2 

§  55.  Who  liable  in  this  action. — The  statute  of 
Illinois  specially  provides,  that  the  tenant,  or  any  person 
elaiming  under  him,  may  be  liable  to  this  action :  but  it 
seems,  that  while  the  action  will  lie  against  a  person  wTho 
makes  a  forcible  entry,  it  will  also  lie  against  any  person 
going  in  under  the  person  who  made  such  forcible  entry 
collusivelv.  with  the  knowledge  of  such  force  and  for  the 
purpose  of  availing  himself  of  it,  because  such  person  might 
well  be  considered  as  himself  committing  the  forcible  entry. 
But  we  cannot  hold,  that  one  taking  possession  in  good 
faith,  in  violation  of  no  law,  is  liable  to  be  turned  out  by  this 

1  Croff  v.  Ballinger,  18  111.  200. 

-'  Reeder  et  al.  v.  Purdy  et  ux.,  41  111.  279. 


72  what  Constitutes  fokojb'le   entry.         j  §  56'. 

summary  remedy,  because  the  person  from  whom  lie  pur- 
chases may.  years  ago,  have  made  an  entry  by  force. 
How  can  a  purchaser  be  said  to  be  guilty  of  an  unlawful 
act  of  which  he  has  never  heard?  In  order  to  reach 
him  in  this  action,  the  plaintiff  must  show  him  to  have 
been  in  some  way  privy  to  the  unlawful  entry,  or  to  have 
so  acted,  that  he  may  fairly  be  considered  as  adopting  it 
and  making:  the  act  his  own.  If  we  were  to  hold  the 
contrary  rule,  the  result  would  be,  that  the  honest  occu- 
pant of  land,  who  had  entered  peaceably  and  in  good 
faith,  would  be  liable  to  be  visited  witli  a  punishment 
designed  only  for  the  wrongdoer.1 

ruder  our  statute,  although  the  landlord  may  be 
wrongfully  kept  out  of  the  possession,  he  has  no  right  to 
use  force  to  effect  an  entry.  In  case  he  should  do  so.  an 
action  of  trespass  will  lie  against  him." 

§  56.    What   constitutes   forcible  entry. — Entry  by 

violence  or  breach  of  the  peace  is  not  necessary.  Forci- 
ble entry  does  not  necessarily  mean  the  taking  of  real 
estate  from  the  possession  of  another  by  breach  of  the 
peace.  The  taking  of  such  property  by  opening  a  gate 
and  removing  cattle  or  other  stock  therefrom,  against  the 
will  of  the  one  occupying  such  property,  is  a  forcible 
mi  try  under  the  law. 

No  one,  not  even  the  owner,  has  the  right  to  forcibly 
take  real  estate  from  the  possession  of  another,  no  matter 
how  justly  he  may  be  entitled  to  it;  and  if  the  owner 
takes  such   possession    against    the    will  of  the    person  in 

Ballauce  v.  Curtenius  et  al.,  :'»  Gil.  (111.)  44!>;    Clark  v.  Barker,  44 
J II.  349. 
-  Wilder  et  al.  v.  House,  48  111.  ',>?.». 


§-0'4.j  DETENTION    AFTEB     DEMAND    IM.AW1TI..  "?> 

possession,  he  will  be  liable  in  an  action  of  forcible  entry 
and  detainer,  even  though  no  violence  is  employed,  and 
even  though  the  occupant's  possession  may  be  unlawful.1 

ruder  the  statute  of  forcible  entry,  actual  violence 
amounting  to  a  breach  of  the  peace  is  not  necessary  in 
any  case.  Force  and  violence,  short  of  a  breach  of  the 
peace,  are  sufficient  where  the  entry  is  required  to  be 
forcible.2 

Where  a  lease  authorizes  the  landlord  to  enter  into  the 
possession  of  the  leased  premises,  with  or  without  process 
of  law  and  expel  or  remove  the  tenant  or  any  other  per- 
son occupying  the  premises,  and  to  use  such  force  as  may 
be  necessary  in  so  doing,  and  to  regain  and  repossess  the 
premises,  in  case  the  tenant  holds  over,  the  landlord  may 
enter  and  remove  the  tenant  therefrom,  after  the  expira- 
tion of  the  term  of  the  lease,  using  no  unnecessary  force 
for  the  purpose,  and  a,  tenant  can  maintain  no  action  of 
trespass  therefor. 3 

Second — The  Action   Will  Lie  for  Unlawfully  Withhold- 
ing Possession. 

When  a  peaceable  entry  is  made,  and  the  possession 
unlawfully  withheld. 

j<  57.     Detention    after    demand    unlawful Every 

detention  of  premises  by  persons  who  have  intruded  into 
the  possession  of  another,  after  demand  duly  made, 
becomes  an  unlawful  detention,  however  peaceable  the 
entry  may  have  been  made.* 

1  Phelps  v.  Randolph,  147  111.  335. 

Smith  v.  Hoag,  45  111.  250. 
3Fabri  v.  Bryan  et  al.,  80  111.  182. 
'Thomasson  v.  Wilson,  146  111.  384. 


74  DETENTION    A.FTEB    DEMAND    UNLAWFUL.  [§57. 

Where  a  person  entered  into  the  possession  of  the 
premises  peaceably  and  in  good  faith  as  the  tenant  of  a 
purchaser  from  one  who  had  previously  made  a  forcible 
entry,  the  tenant,  or  even  his  landlord,  not  being-  privy 
to  the  wrongful  act  of  the  grantor  or  having  any  knowl- 
edge of  it.  such  occupant  is  not  liable  to  be  turned  out 
bv  this  summary  remedy;  but  the  action  will  probably 
lie  against  any  person  going  in  under  the  person  who 
made  the  forcible  entry  collusive!}-,  with  knowledge  of 
such  force  and  tor  the  purpose  of  availing  himself  of  it. 
because  such  person  might  well  be  considered  as  himself 
committing  the  forcible  entry.1 

In  this  form  of  action,  it  is  not  perceived  that  pay- 
ment of  taxes  on  the  lands  tends  to  prove  an  issue  in  the 
case,  nor  does  ownership.  The  whole  question  is  one  of 
actual  possession,  and  a  forcible  entry  upon  that  posses- 
sion, and  not  of  payment  of  taxes  or  of  mere  acts  of 
ownership  not  amounting  to  actual  possession.  Posses- 
sion is  a  fact  that  is  in  no  just  sense  dependent  on  the 
payment  of  taxes,  whether  in  good  or  bad  faith  or  upon 
acts  of  ownership  not  constituting  possession.  There  are 
acts  which  imply  an  assertion  of  title,  which  do  not 
constitute  actual  possession.  The  recording  of  title 
papers,  the  offer  to  sell  or  lease  the  land,  a  sale  of  timber 
or  stone,  the  bringing  of  suits  to  recover  for  trespasses, 
the  license  of  other  persons  to  take  wood,  coal  or  stone 
from  the  premises,  are  all  acts  which  indicate  an  asser- 
tion of  ownership,  but  none  of  them,  nor  even  all  of 
them,  will  support  a  forcible  entry  and  detainer." 

1  Clark  v.  Barker.  44  111.  349. 

■  McCartner  v.  McMullen,  ?,s  111.  2K. 


0  ."is.  ">5>.J    ACTUAL  FORCE  NOT  NECESSARY.  75 

§  5S.  Actual  force  not  necessary. — To  constitute 
forcible  entry  and  detainer  under  the  statute  of  this  State 
it  is  not  necessary  thai  actual  force  and  physical  violence 
should  be  used.1 

Where  the  father  permits  his  son  to  occupy  his  barn 
continuously  with  himself,  for  a  long  time,  under  no 
contract  or  agreement,  this  will  not  vest  in  the  son  any 
right  in  the  property  or  to  its  possession.  It  amounts 
Only  to  an  implied  license,  subject  to  revocation  by  notice, 
at  any  time.  In  such  case,  the  action  of  forcible  entry 
and  detainer  by  the  father  against  the  son  for  the  posses- 
sion will  lie.2 

Third — For  Entry  into  Vacant  Lands. 

i  59.  The  action  will  lie  for  entry  upon  vacant 
lands. — When  entry  is  made  into  vacant  or  unoccupied 
lands  or  Tenements  without  right  or  title,  this  action  will 
Lie. 

In  the  case  of  unoccupied  lands,  acts  which  indicate  an 
assertion  of  ownership  only,  do  not  constitute  a  possession 
that  will  support  an  action  of  forcible  entry  and  detainer.' 

In  the  case  of  <7//'/>/,^  r.  Stephens,  3  A.  K.  Marsh,  M47. 
the  court  held,  that  there  might  be  a  possession  without 
the  plaintiff  being  on  the  land  when  the  entry  was  made. 
On  the  English  and  American  authorities,  the  court  held, 
that  the  right  of  entry  was  not  a  question  in  this  form 
of  action,  but  simply  the  possession.  In  that  case,  a 
tenant  gave  notice  to  his  landlord  that  he  would  surrender 
possession   on. a  specified  day.   and,  in  accordance  with 

Atkinson  v.  Lester  et  al.,  1  Scam.  (111.)  40*. 
-  Dunstedter  v.  Dunstedter,  77  111.  580. 
3  McCartney  v.  McMullen,  38  111.  2:::. 


7<>  THE    FOURTH    CAUSE    OF    ACTION.        [§§60,    61. 

the  notice,  removed  from  the  premises,  but  the  landlord 
failed  to  attend.  Afterwards  the  landlord's  agent  went 
on  to  the  place,  laid  up  Xhe  fences,  laid  the  foundation 
for  a  house  and  burned  a  plant-lied.  The,  defendant, 
whilst  no  person  was  residing  on  the  place,  moved  in  and 
occupied  the  premises.  The  court  on  this  evidence  found, 
that  the  jury  were  warranted  in  finding  a,  verdict  in  favor 
of  the  plaintiff.1    > 

§  (>0.  Owner  deemed  to  have  possession — Whoever 

has  title  to  unoccupied  lands,  is  deemed  to  be  in  possession 
for  all  purposes  in  defense  or  protection  of  his  rights.2 

The  claim  of  land  by  virtue  of  the  pre-emption  laws  of 
the  United  States,  without  occupation  or  enclosure  of  the 
same,  is  not  sufficient  to  sustain  the  action." 

A.  peaceably  entered  into  unoccupied  premises.  15. 
procured  A.'s  arrest  without  warrant,  and  while  A.  was 
thus  in  custody,  B.  took  forcible  possession  of  the  prem- 
ises and  removed  A.'s  goods.  In  this  case,  A.  could 
maintain  the  action  of  forcible  entry  and  detainer.1 

Fourth — Against  a  Tenant  Holding  Over. 

I  61.  The  fourth  cause  of  action. — The  action  will 
lie  when  any  lessee  of  the  lands  or  tenements,  or  any 
person  holding  under  him,  holds  possession  without  right, 
after  the  termination  of  the  lease  or  tenancy  by  its  own 
limitation,  conditions  or  terms,  or  by  notice  to  quit,  or 
otherwise. 

1  .McCartney  v.  McMullen,  38  111.  237. 
-  Brooks  v.  Bruyn.  18  111.  539. 

3  Barlow  v.  Burns,  40  Cal.  351. 

4  Pratt  v.  Stone  et  al..  10  111.  App.  633. 


§62.]  POSSESSION     BY    FRAUD.  77 

The  possession  of  the  tenant  cannot  avail  the  landlord 
to  any  greater  extent  than  it  would  the  tenant  if  he  was 
claiming  and   holding  for  himself.1 

§  62.  Possession  by  fraud Lly  procuring  the  posses 

sion  from  the  tenant  of  the  defendant,  the  party  so  pro- 
curing the  possession  stepped  into  the  tenant's  shoes  and 
must  hold  the  possession  in  the  same  capacity  as  the 
tenant  did.  to  whose  rights  alone,  he  succeeded.  Such  is 
acknowledged  to  lie  the  law,  the  policy  of  which  is  very 
manifest.  It  is  to  prevent  any  party  from  tampering 
with  the  tenant  to  whom  the  possession  of  land  has  been 
confided;  it  is  to  prevent  a  tenant  from  betraying  the 
rights  and  interests  of  the  landlord  from  whom  he 
obtained  the  possession.  The  law  will  compel  the  ten- 
ant to  act  in  good  faith  toward  his  landlord." 

A  landlord  who  has  recovered  judgment  in  an  action 
of  forcible  entry  and  detainer  against  his  tenant,  may, 
under  the  writ,  dispossess  a  sub-tenant  who  is  not  a  party 
to  the  suit,  if  such  sub-tenant  has  entered  pendente  lite, 
but  not  so  if  he  was  previously  in  possession.  Our 
statute  in  terms  contemplates  an  action  against  the  sub- 
tenant, and  so  it  has  been  construed  by  this  court.  This 
court  held,  as  a  principle  of  universal  law,  that  a  person 
cannot  be  turned  out  of  his  possession  by  virtue  of  a 
judgment  and  execution  in  a  proceeding  to  which  he  was 
not  a  party,  unless  he  entered  pendente  fite.s 

1  Patterson  et  al.  v.  Hubbard  etal.,  30  111.  201;  Messmgill  v.  Boyles, 
11  Humphrey,  112. 

-McCartney  v.  Hunt  et  al.,  16  111.  7G. 

3 Clark  v.  Barker,  44  111.  849:  Reed  v.  Hawley,  45  111.  40:  Brush  v. 
Fowler,  36  111.  53;  Leindecker  et  al.  v.  Waldron,  52  111.  283. 


78  SUB-TENANTS.  [  >>  *';'>. 

§  63.  Sab-tenants. — Where  a  lessee  of  premises  has 
sublet  a  portion  of  the  same  and  afterwards  forfeits  his 
own  least'  by  non-payment  of  rent  and  is  evicted,  an 
action  of  forcible  detainer  will  lie  by  the  landlord  against 
the  sub-tenant  to  recover  possession  of  the  portion  of  the 
premises  held  by  him  ;  and  this  is  true,  even  if  the  land- 
lord had  consented  to  the  sub-letting.1 

The  theory  upon  which  this  doctrine  is  based  is.  that 
whenever  a  suit  will  lie  against  the  tenant,  it  will  lie 
against  the  sub-tenant.  This  must  be  so  from  the  nature 
of  the  sub-tenant's  holding;  it  rests  entirely  upon  the 
original  lease  and  must  fall  with  that.  If  that  is  for- 
feited,  the  right  of  the  sub-tenant  is  gone  and  he  may  be 
evicted  by  forcible  detainer  as  well  as  the  original  lessee. 
It  would  be  a  mockery  of  the  rights  of  the  landlord  if 
we  were  to  hold  that,  where  the  lessee  of  a  house  con- 
taining a  dozen  rooms  had  sub- let  a  single  room  and 
afterwards  forfeits  his  own  lease  by  non-payment  of 
rent  and  is  evicted,  the  sub-tenant  can  nevertheless 
retain  possession  of  the  room  rented  to  him  if  he 
promptly  pays  his  own  rent,  or  can  be  evicted  only  by 
the    slow  and  expensive  action  of  ejectment." 

Where  a  landlord  had  made  a  second  lease,  to  com- 
mence from  the  close  of  the  first  term,  action  against 
the  first  tenant  holding  over  was  properly  brought  by 
the  second  tenant,  who  alone  was  entitled  to  the  possrs- 
sion  at  that  time." 

The  action  lies  by  a  lessor  against  a  person   to   whom 

1  Patchell  &  Turner  v.  Johnston,  64  111.  305. 
-  Patchell  &  Turner  v.  Johnston,  64  111.  305. 
3  Ball  v.  Chadwick  et  al.,  40  111.  38. 


Jj  (34.  ]  HOLDING    OYF.U    AKTKK    TEJ.'M     EXPIRES.  79 

his  lessee  has  attorned  and  who  has  turned  such  lessee 
out  of  possession.1 

Under  former  statutes,  a  demand  was  required  before 
commencing  suit  in  forcible  entry  and  detainer,  whether 
the  tenancy  expired  by  expiration  of  the  term  or  by  for- 
feiture and  notice  to  quit." 

But  under  the  statute  of  184.")  it  was  held,  that  a 
demand  before  the  end  of  the  term  would  not  authorize 
the  action.3 

J<  64.  Holding-  over  after  term  expires If  a  tenant 

wrongfully  holds  over  after  the  expiration  of  his  term 
and  refuses  to  surrender  the  leased  premises,  the  land- 
lord's remedy  is  by  action  of  forcible  detainer  or  eject- 
ment. But  if  the  landlord,  during  the  temporary  absence 
of  the  tenant,  enters  and  removes  the  tenant's  stock  and 
other  property  therefrom  and  excludes  the  tenant,  the 
latter  may  be  restored  to  his  possession  by  the  action  of 
forcible  entry  and  detainer.4 

Suit  on  a  lease  to  recover  rent  must  be  against  the 
defendant  in  the  same  capacity  in  which  he  signed  the 
lease. " 

A  suit  of  forcible  detainer  cannot  be  maintained  against 
several  persons  who  hold  in  severalty;  but  in  certain 
cases,  where  the  action  is  joint  in  its  conception  and 
afterwards  the  tenancy  is  several,  all  may  be  joined  in  one 
suit,  though  the  verdict  and  judgment  must  be  several.6 

1  Cox  v.  Cunningham,  77  111.  345. 
•Ball  v.  Peck,  43  111.  482. 
3Doran  v.  Gillespie,  54  111.  366. 
1  Phelps  v.  Randolph,  147  II I.  335. 

5  Neufeld  v.  Beidler,  37  111.  App.  34. 

6  Could  et  al.  v.  Hendrickson,  9  111.  App.  171. 


80  POSSESSION    CTNDEK    LESSEE.  |    §   65. 

A  party  cannot  bring  separate  suits  for  several  sums 
past  due  on  a  lease;  if  more  than  one  payment  is  due, 
these  payments  should  be  consolidated  into  one  suit.' 

Under  our  statute,  the  action  of  forcible  entry  and 
detainer  lies  against  a  sub-lessee  holding  over  after  the 
termination  of  the  original  lease." 

§  65.  Possession  under  lessee.— The  following  in- 
struction is  correct  and  should  have  been  given  to  the 
jury  : 

"  The  court  instructs  the  jury,  that  the  main  question 
in  this  case  to  be  determined  is.  whether  the  plaintiff  was 
a  sub-tenant  of  the  premises,  occupying  the  same  under 
a  lease  from  Breed,  or  whether  she  was  occupying  the 
same  for  Breed  and  under  his  lease  from  the  defendant, 
Mrs.  Miller.  And  if  the  jury  find,  from  the  evidence, 
that  the  alleged  lease  from  Breed  is  only  a  pretense  and. 
in  fact,  never  had  any  existence,  but  that  the  plaintiff 
was  occupying  the  premises  with  Breed,  or  for  him  and 
under  his  lease,  then  the  law  is  for  the  defendants  and 
the  plaintiff  cannot  recover."  s 

It  can  not  be  tolerated  that  a  tenant  who  holds  under 
written  lease  shall,  by  a  secret  arrangement,  constitute 
another  his  sub-tenant  and,  after  judgment  is  obtained 
against  the  lessee,  such  other  shall  insist  that  he  is  not 
bound  by  the  judgment,  as  he  was  not  a  party  to  the 
proceedings.  If  the  sub-tenant  was  alone  in  the  occu- 
pancy of  the  premises,  there  might  be  some  color  for  the 
claim  that  she  should  have  been  a  party  to  the  suit. 
But  she  was  not :    Breed  occupied  the  premises  with  her. 

1  Casselbeny  v.  Forquer.  27  111.  170. 
-  Keed  v.  Hawley.  45  111.  40. 
^Miller  et  al.  v.  White,  80  111.  580. 


§§   66,    67.]  WHAT    COMPLAINT    MUST    SHOW.  8] 

They  were  his  home  and  appellant  had  no  knowledge  of 
this  alleged  subletting.1 

§  (>(>.  What  complaint  must  show — To  give  justices 
jurisdiction,  the  plaintiff  must  state  such  facts  as  show 
that  the  relation  of  landlord  and  tenant  existed,  as  well 
as  a  holding  over  after  a  demand  made  in  writing  by  the 
landlord.2 

To  give  the  court  jurisdiction,  the  petition  should 
show  that  the  defendants  entered  into  the  premises  under 
a  lease,  or  by  the  assent  of  the  plaintiff,  or  some  circum- 
stance from  which  it  can  be  presumed  that  the  relation 
of  landlord  and  tenant  is  shown  to  exist.3 

If  a  sub-lessee  holds  over  after  the  termination  of  the 
original  lease,  he  is  liable  to  eviction  by  an  action  of 
forcible  detainer. 4 

.^  (>7.  Collusive  possession — In  an  action  of  forcible 
entry  and  detainer  by  a  landlord  against  his  tenant  after 
the  termination  of  the  lease,  the  holding  over  of  the  land 
is  the  foundation  of  the  action  and  must  necessarily  be 
proved,  like  any  other  substantial  fact/' 

The  action  lies  by  a  lessor  against  a  sub-lessee  holding 
over  after  the  termination  of  the  original  lease.0 

If  the  proprietor  of  land  obtains  possession  by  col- 
lusion with  the  tenant  of  another,  the  lessor  will  recover 
possession  by  forcible  entry  and  detainer,  whether  he  is 
entitled  to  retain  such  possession  as  against  the  proprietor, 

1  Miller  et  al.  vs.  White,  80  111.  580. 
:  Wells  v.  Hogan,  1  111.  337. 
3  Beel  v.  Pierce  et  al.,  11  111.  92. 
-1  Reed  v.  Hawley,  45  111.  40. 
5  Reed  v.  Grant,  4  Cal.  176. 
*  Reed  v.  Hawley,  45  111.  40. 
6 


82  FIFTH    CAUSE    OF    ACTION.  |    §§   68,    69. 

or  not.  The  possession  obtained  by  collusion  with  the 
tenant  only  gives  the  proprietor  the  right  to  hold  in  the 
capacity  of  the  person  with  whom  he  colluded.1 

Fifth — Against  a  Purchaser  who  Fails  to   Comply  with 
the  Contract  of  Purchase. 

%  68.    The   fifth    statutory   cause   of  action — The 

action  will  lie  upon  a  vendee,  having  obtained  possession 
under  a  written  or  verbal  agreement  to  purchase  lands  or 
tenements  and  having  failed  to  comply  with  his  agree- 
ment, withholds  possession  thereof  after  demand  in  writ- 
ing by  the  person  entitled  to  such  possession. 

Where  the  vendor  of  real  property  brings  forcible 
detainer  against  the  purchaser  to  recover  possession  for 
non-compliance  with  the  contract  of  sale,  it  will  be  suffi- 
cient to  show  that  the  defendant  at  the  time  the  suit  was 
brought  was  in  possession  by  himself,  or  by  others  hold- 
ing under  him.*. 

§  69.  Who  may  sue  under  this  clause. — Under  this 
clause  of  the  statute,  the  grantee  of  a  vendor  may  sus- 
tain the  action.3 

In  litigation  arising  under  clause  5  of  the  statute,  a 
purchaser  having  entered  into  the  possession  under  a  con- 
tract of  purchase  and  failing  to  perform  his  contract  is 
estopped  from  denying  his  vendor's  right.' 

The  detention  of  the   premises   under  this  clause  may 

1  McCarthy  v.  Hunt  et  al.,  16  111.  76. 
•  Lesher  v.  Sherwin,  86  111.  420. 
3  Monsen  v.  Stevens,  56  111.  335. 
••Lesher  v.  Sherwin,  86  111.  420. 


§    TO.  J  WHAT    XKCKSSAKY    TO    GIVE    JURISDICTION.  83 

bo  by  the  purchaser  or  by  others  under  him;  in  cither 
case  it  is  ground  for  the  action.1 

But  the  relation  of  vendor  and  vendee  must  exist ;  the 
vendee  must  have  obtained  possession  under  a  contract  of 
purchase  and  his  failure  to  comply  with  the  contract 
must  be  before  obtaining  a  deed  to  the  premises  to  give 
the  cause  of  action.2 

Where  a  conveyance  is  made  for  the  purpose  of  secur- 
ity and  taking  a  bond  back  for  re-conveyance  of  the 
premises,  the  grantee  in  such  case  is  not  liable  as  a  vendee 
hereunder  on  default  of  payment,  as  such  a  conveyance  is 
not  a  contract  of  purchase  in  the  meaning  of  the  statute.3 

In  order  to  give  a  justice  jurisdiction  in  an  action  of 
forcible  detainer,  as  between  the  vendor  and  vendee  of 
land,  under  the  act  of  1861  the  following  elements  must 
be  shown  by  the  complaint :  First.  The  relation  of  vendor 
and  vendee  must  exist.  Second.  The  vendee  must  have 
obtained  possession  of  the  land  under  the  contract.  And 
then  it  is  not  sufficient  that  the  vendee  has  at  any  time 
failed  to  comply  with  his  contract,  but  he  must  have 
failed  or  refused  to  comply  with  it,  before  obtaining  a 
deed  of  conveyance.  If  either  of  these  elements  is  want- 
ing, the  justice  acquires  no  jurisdiction.4 

§  70.    What    necessary    to    give    jurisdiction. — In 

forcible  detainer  by  the  vendor  of  land  against  his  vendee 
to  recover  possession,  the  written  agreement  to  sell  and 
the    tender  of  a    deed    under  the  contract,   are   proper 

1  Lesher  v.  Sherwin,  86  III.  420. 

2  Haskins  et  al.  v.  Haskins,  67  111.  446. 

3  West  v.  Frederick,  62  111.  191. 

4  Haskins  et  al.  v.  Haskins.  67  111.  440. 


>4  WHAT    XKCESSAKY    TO    GIVE    JURISDICTION.         [   §  70. 

evidence  to  show  that   defendant   failed  to  comply  with 
his  contract.' 

Where  the  defendant,  entering  into  possession  under  a 
contract  of  purchase,  fails  to  comply  with  such  contract, 
he  will  be  estopped  from  denying  his  vendor's  right  to 
possession  in  forcible  detainer,  and  the  plaintiff  need  not 
prove  any  prior  possession  in  himself.2 

Where  the  relation  of  parties  is  that  of  vendor  and 
vendee  and  elements  above  stated  are  not  shown,  a  pro- 
ceeding- for  forcible  entry  and  detainer  will  not  be  sus- 
tained.3 

Under  the  act  of  1861,  the  vendor  of  land  may  main- 
tain an  action  of  forcible  entry  and  detainer  against  the 
vendee,  where  the  latter  has  entered  into  possession  of 
the  premises  under  a  contract  of  purchase,  but  before 
obtaining  a  deed  of  conveyance  to  the  same,  and  fails 
and  refuses  to  comply  with  the  terms  of  the  contract.4 

In  Illinois  and  some  other  States,  the  vendor  can 
maintain  this  action  against  the  vendee,  where  he  has 
failed  or  refused  to  comply  with  the  conditions  of  the 
contract  under  which  he  holds,  or  has  forfeited  it/ 

Where  a  vendee,  under  a  contract  of  purchase,   has 
entered   into   possession,  and.  before   obtaining  a   deed, 
refuses  to  comply  with  the  contract  and   assigns  his  con 
tract,  or.  without  assigning  the  contract,   puts  another 

1  Lesher  v.  Sherwin,  86  111.  420. 

-  Lesher  v.  Sherwin,  86  111.  420. 

3  Dixon  v.  Haley,  16  111.  145. 

*  Wilburn  v.  Haines,  53  111.  207. 

5  Monsen  v.  Stevens,  56  III.  335:  Wilburn  v.  Haines,  53  111.  207. 
Williamson  v.  Paxton,  18  Gratt.  (Va.)  475;  Beard  v.  Bricker.  2  Swan. 
(Tenn.)  50:  Sullivan  v.  Ivey,  2  Sneed  (Tenn.).  487. 


^  71.]  GROWING    CROPS.  85 

party  in  possession,  he  himself  abandoning  the  posses- 
sion and  refusing  to  comply  with  the  contract,  forcible 
entry  and  detainer  can  be  maintained  against  the  party 
in  possession.  He  stands  in  the  shoes  of  the  vendee  and 
is  the  vendee  for  all  the  purposes  of  this  remedy.1 

Where  a  party  borrows  money  and  conveys  land  to 
secure  its  re-payment  with  interest,  and  takes  back  a 
contract  for  the  re-conveyance  of  the  land  upon  payment, 
the  relation  of  vendor  and  vendee  will  not  exist  between 
them  and  the  party  making  the  loan  cannot  maintain 
forcible  detainer  to  recover  possession  upon  default  of 
payment  by  the  party  in  possession.'"' 

Where  the  landlord,  before  the  end  of  the  term,  con- 
veyed the  premises  by  a  deed  absolute  to  another  and  an 
agreement  was  made  at  that  time  that  the  landlord 
should  procure  the  possession  for  the  grantee  by  a  cer- 
tain date,  or  forfeit  $75.00;  held,  that  this  did  not 
amount  to  a  reservation  of  any  right  to  possession  in  the 
landlord  and  lie  could  not  maintain  forcible  detainer 
against  the  tenant.  The  principle  governing  this  decision 
is,  that  even  if  such  an  agreement  should  be  construed  as 
a  reservation  of  the  right  of  possession,  it  would  be 
inconsistent  with  the  deed  which  carries  the  right  of 
possession  with  it,  and  being  at  the  same  time,  would  be 
void." 

§71-  Growing  crops — Sec   -f.    In  case  of  forfeiture 

under   a  contract    of    purchase,    the    purchaser   shall   be 
entitled  to  cultivate  and  gather  crops,  if  any,  planted  by 

1  Jackson  v.  Warren.  32  111.  331. 
-West  v.  Frederick,  62  111.  191. 
aPurdy  v.  Rakestraw  et  al..  13  111.  App.  480. 


S6  THE    SIXTH    CAUSE    OF    A.CTJON.  |   §>j  72,    73. 

him  and  grown  or  growing  on  the  premises  at  the  time 
of  the  commencement  of  the  suit,  and  shall  have  the 
right  to  enter  for  the  purpose  of  removing  such  crops, 
first  paving  or  tendering  to  the  party  entitled  to  the  pos- 
session a  reasonable  compensation  for  such  use  of  the  land 
before  removing  such  crops.1 

Sixth —  When  the  Premises  I  Jar,    Been  Sold  at  Judicial 

Sale. 

i  72.  The  sixth  cause  of  action. — The  action  will  lie 
when  lands  or  tenements  have  been  conveyed  by  any 
grantor  in  possession,  or  sold  under  the  judgment  or 
decree  of  any  court  in  this  State,  or  by  virtue  of  any 
power  of  sale  in  any  mortgage  or  deed  of  trust  contained, 
and  the  grantor  in  possession,  or  party  to  such  judgment 
or  to  such  mortgage  or  deed  of  trust,  after  the  expira- 
tion of  the  time  of  redemption  is  allowed  by  law.  refuses 
or  neglects  to  surrender  possession  thereof  after  demand  in 
writing  by  the  person  entitled  thereto,  or  his  agent. 

£  73.  When  right   first   given The  right  of  action 

under  a  judicial  sale  was  given  by  the  laws  of  1861. 
The  right  of  action  by  a  purchaser  at  a  sale  made  under 
the  power  given  in  the  mortgage  or  trust-deed  was  first 
given  under  clause  6  of  this  statute  in  1874.  The  right 
of  action  by  a  grantee  against  a  grantor  in  possession 
was  added  by  amendment  in  1881. s 

The  title  of  a  purchaser  at  a  foreclosure  sale  seems  to 
date  from  the  execution  of  the  mortgage ;  he  is  not 
bound  by  the  mortgagor's  lease  executed  after  the  mort- 

1  Rev.  Stat.  Ch.  57,  sec.  4. 

"See  Rev.  Stat.  1874,  p.  535  and  amendments  thereafter. 


^    74.]  DETENTION     AFTEK     SALE.  87 

gage,  and  he  may  eject  the  lessee  of  the  mortgagor  with- 
out notice.1 

The  action  of  forcible  entry  and  detainer  will  lie 
against  all  persons  bound  by  a  decree,  even  though  they 
may  not  be  named  in  it." 

Where  the  defendant  held  possession  and  the  plaintiff 
established  his  right  of  possession  against  the  defendant 
in  execution  by  proof  of  judgment,  writ  of  sale  and 
sheriff's  deed,  it  is  sufficient ;  but  in  case  the  party  in 
possession  is  a  strangerto  the  judgment,  he  must  be  shown 
to  hold  under  the  judgment  debtor  by  a  right  acquired 
since  the  judgment  lien  attached,  to  enable  him  to  sus- 
tain the  action.3 

The  writ  of  possession  issued  upon  a  decree  and  the 
action  of  forcible  entry  and  detainer  seem  to  be  concur- 
rent remedies  and  both  may  be  pursued  until  satisfaction 
is  had  by  one  remedy.' 

A  purchaser  at  a  foreclosure  sale,  after  the  expiration 
of  the  time  for  redemption,  may  bring  this  action  after 
demand  of  possession  in  writing.' 

§  74.  Detention  of  premises  after  sale — The  remedy 
of  forcible  detainer,  given  by  the  statute  in  favor  of  a 
purchaser  at  a  judicial  sale,  after  the  time  of  redemption 
has  expired,  is  not  restricted  to  the  nominal  party  against 
whom  the  judgment  is  obtained,  but  may  be  employed 
against   anyone  who,  either   before   or  after  the  time  of 

1  Bartlett  v.  Hitchcock,  10  III.  App.  87. 

-Rice  v.  Brown.  77  111.  549. 

:;  Nicholson  et  al.  v.  Walker  et  al.,  4  111.  App.  404. 

4  Kessinger  v.  Whittaker  et  al.,  S3  111.  22. 

5  Lehman  v.  Whittington,  8  III.  App.  374. 


88  A.GAINST    WHOM    SUIT    BBOUGHT.  |  §   75. 

redemption    has    expired,    obtains    possession    from    the 
defendant  in  the  judgment.' 

§  75.  Against  whom  suit  brought — A  purchaser  at 

an  execution  sale  must  make  a  demand  on  the  occupant 
before  he  can  maintain  forcible  detainer." 

An  action  can  be  brought  under  the  sixth  clause  of  the 
second  section  of  the  forcible  entry  and  detainer  act  only 
against  a  party  to  such  judgment  or  decree.3 

In  an  action  under  the  statute,  in  forcible  entry  and 
detainer  by  the  purchaser  at  the  sheriff's  sale,  to  obtain 
judgment  of  land  against  a  party  claiming  ownership  in 
fee,  the  question  of  title  is  put  in  issue. ' 

Although  the  question  of  title  cannot  arise  on  the  trial 
of  an  action  of  forcible  detainer,  nevertheless  the  pur- 
chaser at  a  judicial  sale  cannot  recover  against  the  judg- 
ment debtor,  or  one  succeeding  to  his  rights  and  posses- 
sion, unless  he  offers  in  evidence  a  valid  judgment,  execu- 
tion and  sheriff's  deed.  These  are  indispensable  requisites 
to  a  recovery,  because  a  sale  of  the  land  under  the  judg- 
ment and  a  failure  to  redeem  must  be  shown. 

When  a  remedy  by  an  action  of  forcible  entry  and 
detainer  is  sought  under  the  second  clause  of  the  act  of 
L861,  it  is  not  restricted  to  the  nominal  party  against 
whom  the  decree  was  rendered,  but  may  be  employed 
against  any  one  who,  even  after  the  expiration  of  the 
time  of  redemption  from  the  sale  under  the  decree  and 

•Kratz  v.  Buck,  111  111.  40. 

Dickason  v.  Dawson.  85  111.  53. 

Kingsbury  v.  Perkins  et  al..  15  111.  App.  340. 
*  Kepley  v.  Luke,  10  III.  App.  403. 
•'Kratz  v.  Buck,  111  111.  40. 


JjjJ  76,    77.]  DEMAND    NECESSARY.  ^!> 

after  the  execution  and  delivery  of  the  master's  deed  to 
the  purchaser,  by  collusion  with  the  defendant  in  the 
decree,  obtains  and  holds  the  possession  of  the  premises 
without  the  knowledge  or  consent  of  the  purchaser.1 

§  76.  Demand  necessary. — Xo  action  arises  against  a 
tenant  for  holding  over  until  demand  of  possession  has 
been  made. 

In  this  action  the  plaintiff  must  show  that  the  posses- 
sion of  the  defendant  is  wrongful  as  against  him,  and 
this  he  may  do  by  proving  that  the  defendant  went  into 
possession  under  the  party  to  the  trust  deed,  under  which 
plaintiff  claims  after  the  lien  attached  to  the  land. 

>j  77.  The  proof  necessary To  recover  in  an  action 

of  forcible  entry  and  detainer,  under  the  act  of  February 
20,  1861,  against  one  who  remains  in  possession  after 
his  rights  have  been  divested  by  judicial  sale,  the  plaint- 
iff must  show  a  valid  judgment,  execution  and  deed." 

The  plaintiff's  right  to  possession,  where  the  defend- 
ant in  execution  is  defendant  also  in  the  action  of  forcible 
detainer,  is  fully  established  by  the  introduction  in 
evidence  of  the  judgment,  execution  and  sale  thereunder 
and  sheriff's  deed.  But  where  the  defendant  in  forcible 
detainer  is  a  stranger  to  the  judgment,  it  must  be  shown 
that  the  party  in  possession  holds  in  subordination  to  the 
title  or  possession  of  the  judgment  rendered ;  that  his 
title  was  acquired  subsequent  to  the  lien  of  the  judg- 
ment. If  his  right  was  acquired  prior  to  the  judgment, 
a  party  leases  the  land  for  a  term  of  years  and  the  tenant 

'Jackson  v.  Warren,  32  111.  331;  Dudley  et  al.  v.  Lee,  39  111.  339; 
Preston  et  al.  v.  Zahl,  4  111.  App.  423. 
-Johnson  v.  Bantock,  38  111.  111. 


90  JUDICIAL    SALES.  |   ^   78. 

takes  possession,  the  purchaser  under  the  execution  can- 
not recover  possession  in  an   action  of  forcible  detainer.1 

A  purchaser  at  a  sheriff's  sale  cannot  maintain  an 
action  of  forcible  detainer  after  receiving  a  deed,  without 
first  making  demand  for  possession.8 

Where  a  plaintiff  fails  to  show  any  privity  of  estate 
between  the  defendant  and  the  mortgagor  and  there  is 
nothing  to  show  by  what  right  defendant  is  in  possession, 
the  case  is  not  made  out  against  him.3 

A  person  in  the  quiet  possession  of  mortgaged  prem- 
ises at  the  time  of  the  commencement  of  the  foreclosure 
suit,  who  is  put  out  of  possession  by  means  of  a  writ  of 
possession  issued  on  a  decree  to  which  he  was  not  a 
party,  may  maintain  an  action  of  forcible  entry  and 
detainer  to  restore  him  the  possession  from  which  he  has 
been  forcibly  and  unlawfully  ousted.4 

§  78.  Judicial  sales In   Illinois,  the  right  of  action 

is  extended  to  purchasers  at  judicial  sales. " 

Where  a  tenant,  after  a  sale  of  leased  premises,  attorns 
to  the  purchaser,  but,  after  a  judgment  against  him  for 
the  recovery  of  possession  in  favor  of  the  original  land 
lord,  paid  such  landlord's  attorney  one  month's  rent  and 
agreed  to  deposit  all  subsequent  rents  in  the  bank,  this 
creates  the  relation  of  landlord  and  tenant  between 
them.8 

1  Nicholson  et  al.  v.  Walker  et  al.,  4  111.  App.  404. 
'-'  Dickason  v.  Dawson,  85  111.  53. 

3  Preston  et  al.  v.  Zahl,  4  111.  App.  423. 

4  Brush  v.  Fowler.  36  111.  53. 

5  Lehman  v.  AYhittington.  8  111.  App  374:  Rice  v  Browu.  77  111. 
549. 

6  Fisher  v.  .Smith.  48  111.  184. 


§79.]  STEPS    NECESSARY    TO    RECOVER.  !'l 

§  79.  What  steps  necessary  to  recover  under  this 
clause. — hi  an  action  of  forcible  entry  and  detainer, 
brought  under  the  sixth  clause  of  section  2,  chapter  57. 
Jv.  S..  which  provides  that  when  lands  have  been  sold 
under  the  judgment  of  any  court  and  the  party  to  such 
judgment  or  decree  refuses,  after  the  expiration  of  the 
time  of  redemption  and  after  demand  in  writing,  to  sur- 
render possession  to  the  person  entitled  thereto,  such 
person  may  recover  the  possession  by  an  action  of  forci- 
ble entry  and  detainer.  The  person  entitled  to  such  suit 
is  not  required  before  commencing  his  suit  to  serve  upon 
the  person  in  possession  a  copy  of  the  decree  and  produce 
and  exhibit  his  deed,  as  in  proceedings  to  procure  a  writ 
of  assistance.  In  such  cases  the  person  entitled  to  pos- 
session is  required  only  to  comply  with  the  statute — that 
is,  to  make  a  demand  in  writing  before  commencing  his 
suit,1 

1  Brackensieck  v.  Vahle  et  al..  48  III.  App.  312. 


92  THE    ONLY     ISSUE    TO    BE    (TRIED.  |   §  80. 

(Ml  A  ITER   V. 

WHO    MAY    MAINTAIN    THE    ACTION. 

Section  80.  The  only  issue  to  be  tried. 

81.  What  possession  necessary. 

82.  Possession  of  timber  lands. 

83.  Who  the  proper  plaintiff. 

84.  Cases  in  illustration. 

85.  Growth  of  the  action  under  the  statutes. 

86.  Particular  cases  stated. 

87.  Right  of  exclusive  possession  requisite. 

The  question  of  title  is  not  involved  in  the  action  of 
forcible  entry  and  detainer,  it  being  repeatedly  held  by 
the  Supreme  Court,  that  "the  question  of  title  is  not  in 
any  sense  involved  in  this  action.' '  ' 

§  80.  The  only  issue  to  he  tried — In  this  view,  the 
possession  and  right  of  possession  being  the  only  ques- 
tions to  be  settled,  it  necessarily  follows,  that  only  he 
who  is  entitled  to  the  possession  of  the  lands  in  dispute 
can  maintain  this  action.  The  questions,  therefore,  to  be 
tried  are :  Had  plaintiff  possession  of  the  property  in 
question?  Has  that  possession  been  invaded  by  the  de- 
fendant and  wrongfully  withheld  after  such  entry?     Or, 

1  Hardisty  v.  Glenn,  32  111.  63;  Shoudy  v.  .School  Directors,  etc.. 
32  111.  290;  McCartney  v.  McMullen,  38  III.  237;  Johnson  et  al.  v. 
Baker,  38  111.  98;  Smith  v.  Hoag,  45  111.  250;  Hewitt  v.  Templeton 
et  al.,  48  111.  371:  Smith  v.  Hollenback  et  al.,  51  111.  223;  Thompson 
v.  Sornberger,  59  111.  326;  Doty  v.  Burdick,  83  111.  473;  Wheelan  v. 
Fish,  2Bradw.  447;  Knight  v.  Knight  et  al..  3  Bradw.  206:  Spurck 
v.  Forsyth,  40  111.  438. 


8   80.  |  THE    ONLY     ISSUE    TO    BE    TRIED.  93 

in  case  the  entry  was  peaceable  and  rightful,  such  as  that 
of  a  tenant,  has  such  possession  been  unlawfully  detained 
by  the  defendant? 

The  plaintiff,  to  recover  in  this  action  of  forcible  entry 
and  detainer,  must  show  that  he  has  the  right  of  posses- 
sion of  the  premises  upon  which  the  forcible  entry  is  said 
to  have  been  made;  the  mere  constructive  possession, 
such  as  the  fee  simple  title  to  the  land  entered  upon  draws 
to  it.  is  not  sufficient.1 

These  cases,  however,  will  not  apply  in  entries  upon 
unoccupied  lands  under  the  late  statute,  in  which  cases 
actual  possession  is  not  necessary  to  maintain  the  action. 

So  also  an  entry  upon  the  enclosed  and  cultivated 
portion,  under  a  lease  for  the  whole,  and  claiming  the 
entire  tract,  is  such  a  possession  of  the  unenclosed  por- 
tion of  the  land  as  will  enable  a  party  to  maintain  the 
action  of  forcible  entry  and  detainer  against  any  one  who 
may  forcibly  enter  on  that  portion.'2 

It  was  also  held  in  the  case  of  McCartney  r.  McMul- 
/V//.  38  111.  237,  that  acts  which  indicate  an  assertion  of 
ownership  do  not  constitute  such  a  possession  as  will  sup- 
port this  action. 

If  the  complaining  party  has  actual  possession  with  or 
without  title,  or  such  a  claim  to  public  lands  as  is  recog- 
nized by  our  statutes,  he  can  maintain  the  action  against 
any  one  illegally  or  forcibly  intruding  upon  such  posses- 
sion/ 

Where  the  plaintiff,  finding  the  premises  vacant  and 

1  Thompson  v.  Sornberger,  59  111.  326:  Smith  v.  Hollenback,  51  111. 
328;  McCartney  v.  McMullen,  38  III.  237. 

2  Hardisty  v.  Glenn.  32  111.  62. 

3  Whitaker  et  al.  v.  Gautier.  3  Gilm.  443. 


'•'-I-  WHAT    POS8ES8IOSI    NECESSARY.  |   §   81. 

unoccupied,  took  peaceable  possession  of  the  same. 
claiming  to  be  the  owner,  and  the  defendants  procured 
the  arrest  of  the  plaintiff  by  a  policeman  without  war- 
rant, and,  during  her  absence  at  the  police  station,  took 
forcible  possession  of  the  premises  and  removed  her 
goods,  it  was  held  a  good  cause  of  action  against  the 
parties  under  the  forcible  detainer  act.1 

In  Nicholson  et  dl.  v.  Walker  et  al.t  4  Bradw.  404.  it 
is  held  by  the  Appellate  Court,  that  the  defendant  may 
show  the  source  of  his  claim  to  the  right  of  possession  ; 
and  in  the  case  of  Kepley  v.  Luke,  10  Bradw.  40:!.  a 
forcible  entry  and  detainer  case,  the  same  court  holds 
that,  under  the  facts  in  that  case,  the  rights  of  the  parties 
can  not  be  determined  without  deciding  which  of  them 
is  the  owner  in  fee.  Yet  the  doctrine  enunciated  by 
decisions  of  the  Supreme  Court  in  Kepley  >■.  Luke,  lot; 
111.  395.  and  other  cases  heretofore  cited,  is  the  law  on 
this  point. 

§  81.   What    possession    necessary The    possession 

necessary  on  the  part  of  the  plaintiff  to  support  this 
action  is  not, a  pedis  possessio,  as  actual  possession  may 
exist  by  proof  of  something  short  of  an  actual  residence 
on  the   land,  or  enclosing  it  by  a  fence.'2 

In  Davis  ,-.  Easley,  13  111.  192.  it  is  held  that  a  party, 
having  a  deed  for  a  tract  of  land  covered  with  timber, 
and  which  has  been  used  in  support  of  the  farm  for  an 
uninterrupted  period  of  time,  and  from  which  he  habitu- 
ally takes  firewood,  rails  and   other  materials,  has  such 

1  Pratt  v.  Stone  et  al.,  10  P.radw.  633. 

2  Pearson  v.  Herr.  53  111   144:  Jamison  v.  Graham,  57  111.  !»4:  Spur-ck 
v.  Forsvth.  40  111.  438. 


_<   82.  |  POSSESSION    OF    TIMBER    LANDS.  95 

an  actual  possession  as  will  entitle  him  to  maintain  an 
action  of  replevin  against  a  party  who  shall  convert 
timber  growing  on  such  lands  into  boards. 

§  S2.  Possession  of  timber  lands. — Actual  possession 
of  timber  lands  is  defined  and  said  to  consist  of  such 
acts  as  the  plaintiff  repeatedly  performed  in  regard  to 
the  tract  of  land.  Nothing  is  clearer  than  that  a  fence 
is  not  indispensable  to  constitute  possession  of  a  tract  of 
land  ;  that  it  is  nothing  more  than  an  act  presumptive 
of  an  intention  to  assert  an  ownership  and  possession 
over  the  property.  But  there  are  many  other  acts 
equally  evincive  of  such  an  intention — such  as  entering 
upon  land  and  making  improvements  thereon,  raising  a 
crop,  felling  and  selling  the  trees  thereon,  under  color  of 
title,  etc.' 

Thus,  where  a  party  claiming  a  vacant  lot,  enclosed 
the  same,  by  building  a  fence  so  as  to  join  with  another 
fence  and  a  brick  wall,  and  thus  keep  out  domestic 
animals,  and  inform  all  persons  that  the  premises  were 
appropriated,  it  was  held,  that  this  was  a  sufficient  actual 
possession  to  maintain  forcible  entry  and  detainer  against 
parties  breaking  down  and  destroying  the  fence  in  a, 
forcible  manner,  under  claim  of  ownership." 

But  where  a  party  has  been  in  the  possession  of  land 
for  several  years,  and  an  adverse  claimant  enters  and 
locks  the  barn  and  gate,  plows  and  plants  the  same, 
which  the  other  party  does  not  acquiesce  in,  but  resumes 
his  possession,  and  leases  the  same  to  a  tenant,  the  acts 

'Brooks  v.  Bruyn,  18  111.   539;    Pensoneau  v.  Bertke,  82  111.   161: 
Pearson  v.  Herr,  53  111.  150;  Hassett  v.  Johnson,  48  111.  69. 
-  Allen  v.  Tobias  et  al.,  77  111.  169. 


96  WHO    THE    PKOPEK    PLAINTIFF.  [§83. 

of  the  adverse  claimant  will  not  be  such  a  possession, 
unless  justified  by  title,  and  demand  of  possession  as  will 
enable  him  to  maintain  forcible  entry  and  detainer 
against  the  tenant. 

Where  it  was  objected  by  the  defendant  in  an  action 
of  forcible  entry  and  detainer,  that  he  was  in  possession 
of  only  part  of  the  premises,  viz.,  the  house  and  garden 
situated  on  the  tract,  it  was  held  that  where  a  defendant 
is  thus  in  possession  of  the  premises,  the  action  will  lie 
against  him.1 

Possession  and  exerting  acts  of  ownership  by  a  son, 
with  whom  the  mother  lived  for  twenty-eight  years,  con- 
stitutes such  possession  in  the  son  as  will  enable  him  to 
maintain  the  action  of  forcible  entrv  and  detainer  aeainst 
an  intruder." 

The  action  of  forcible  entry  and  detainer  is  maintain- 
able only  where  the  plaintiff  seeks  to  obtain  possession 
of  real  property.3 

The  action  of  forcible  detainer  can  only  be  maintained 
by  one  who  is  entitled  to  possession.4 

§  S3.  Who  the   proper    plaintiff Only  the   person 

entitled  to  the  possession  can  make  the  complaint,  he 
being  the  only  party  whose  possession  has  been  injured. 
A  lawful  possession  must  be  averred." 

In  general,  the  person  who  was  deprived  of.  and  who 
has  the  legal  right  of  possession  is  the  proper  person  to 
institute  the  proceedings,  in  whatever  character  or  capac- 

1  Cox  v.  Cunningham,  77  111.  545. 

-'  Rice  v.  Brown,  77  111.  549. 

:;  Kassing  et  al.  v.  Keohane,  4  111.  App.  460. 

4  Mueller  v.  Newell,  29  111.  App.  192. 

s  McCartney  v.  McMullen,  :38  111.  SM. 


§  83.]  WHO    THE    PROPEE     I'l.A  IXTIKK.  !»7 

ity  this  possession  or  right  of  possession  may  have  been 
held.1 

The  devisee  or  grantee  of  a  lessor,  by  express  statute, 
may  maintain  an  action  of  forcible  detainer  in  his  own 
name." 

The  right  of  action  in  forcible  entry  and  detainer  vests 
at  once  in  the  person  whose  possession  has  been  invaded, 
and  this  right  must  be  exercised  during  his  life  in  his 
own  name.3 

A  party  forcibly  expelled  from  the  premises  of  which 
he  was  in  peaceable  possession  may  maintain  forcible 
entry,  even  if  the  expelling  party  had  the  right  of  entry.4 

Whoever  is  in  the  actual  possession  of  lands,  claiming 
the  fee.  is  presumed  to  have  it,  and  may  maintain  an 
action  for  an  invasion  of  his  possession  against  anyone 
but  him  who  has  the  legal  right  of  possession.' 

While  it  is  of  no  importance  whether  the  possession  is 
by  right  or  by  wrong,  nor  whether  the  term  of  years  be 
legal  or  not,  yet  a  man  who  was  neither  in  possession 
nor  had  title  at  the  time  the  entry  was  made,  cannot,  by 
any  subsequent  purchase,  acquire  a  right  to  institute  this 
proceeding.' 

The  action  will  lie,  where  the  proprietor  of  land 
obtains  possession  by  collusion  with  the  tenant  of  another 

■Mann  v.  Brady,  67  111.  95;  Rice  v.  Brown,  77  111.  549:  Dudley  et 
al.  v.  Lee,  39  111.  339. 
5  Thomasson  v.  Wilson,  146  111.  384. 
3 Dudley  et  al.  v.  Lee,  39  111.  339. 

4  Baker  v.  Hays,  28  111.  387. 

5  Brooks  v.  Bruyn,  18  111.  539. 

6  State  v.  Pierson,  2  N.  H.  550:  Gray  v.  Gray,  3  Litt.  465:  Louis  v. 
Stitle.  2  Litt.  294. 


98  CASKS    IX    ILLUSTRATION.  [§84. 

to  recover  possession   of  the   premises,  and  this  is   true, 
whether  he  is  entitled  to  retain  the  possession,  or  not.1 

§  <S4.  Cases  in  illustration One  in  peaceable  posses- 
sion, if  forcibly  expelled  from  the  premises,  may  main- 
tain the  action." 

The  landlord  who  becomes  entitled  to  the  possession 
of  premises  by  the  determination  of  a  lease  under  an 
arrangement  with  his  tenant,  cannot  maintain  the  action 
of  forcible  entry  and  detainer  for  an  entry  made  while 
the  tenant  was  in  possession.3 

A  person  who  has  been  turned  out  of  his  possession 
by  a  writ  issued  by  virtue  of  a  decree  to  which  he  was  in 
no  sense  a  party,  may  proceed  by  action  of  forcible  entry 
and  detainer  to  recover  the  possession.4 

It  is  held,  that  one  joint  tenant  or  tenant  in  common 
may  maintain  forcible  entry  and  detainer  against  his 
co-tenant,  but  cannot  recover  the  exclusive  possession.6 

One  who  is  in  possession  of  premises  under  an  agree- 
ment to  keep  possession  of  them,  together  with  articles 
of  furniture,  for  the  owner,  has  such  an  interest  as  will 
enable  him  to  maintain  an  action  for  forcible  entry  and 
detainer. 6 

The  house  was  occupied  as  a  school-house  by  the  con- 
sent of  A.,  who  claimed  the  right  to  the  possession  of  the 
land  on  which  it  was  situated ;  before  the  termination  of 
the  school,  B.  took  possession  of  the  house,  declaring  that 

1  McCartney  v.  Hunt  et  al..  16  111   76. 
Baker  v.  Hays,  28  111.  387. 

3  Hays  v.  Porter,  27  Tex.  92. 

4  Laird  v.  Winters,  27  Tex.  440. 
•Mason  v.  Finch,  2  111.  (1  Scam.)  495. 
6  House  v.  Camp.  32  Ala.  541. 


§85.]  GROWTH    hi-'    THE    A.CTION.  99 

if  any  person  attempted  to  dispossess  him  he  would  shoot 
him.  Held,  that  this  was  a  forcible  entry  and  detainer 
and  that,  if  held  after  the  termination  of  the  school,  it  was 
a  forcible  detainer  of  the  premises  of  A.,  for  which  the 
action  will  lie.' 

§  85.  Growth  of  the  action  under  statutes. — A  con- 
veyance pendente  lite  by  the  plaintiff  in  an  action  of  for- 
cible entry  and  detainer  does  not  affect  his  right  to 
recover,  if  at  the  commencement  of  the  suit  he  was 
entitled  to  the  possession  ;  and  the  same  result  attends  in 
change  of  possession."' 

A  bird's  eye  view  of  the  growth  of  the  action  in  Illi- 
nois can  be  obtained  from  the  rulings  of  the  Supreme 
Court  on  the  various  statutes,  the  scope  of  the  action 
being  enlarged  by  the  successive  acts  of  the  Legislature 
from  being  applicable  to  two  cases  originally  to  now 
applying  to  six  distinct  cases  enumerated  by  our  latest 
statutes. 

To  maintain  the  action  of  forcible  entry  and  detainer 
under  the  statute,  two  things  must  concur : 

1.  The  possession  must  be  illegally  or  forcibly  taken, 
which  constitutes  the  entry. 

2.  The  possession  must  be  withheld,  which  constitutes 
the  detainer." 

The  statute  provides  for  three  cases  in  which  forcible 
entry  and  detainer  may  be  maintained  : 

1.  A  wrongful  entry,  as  contradistinguished  from  a 
violent  one. 

'Van  Hook  v.  Story.  4  Humphries  (Term.),  59. 
-  Daggitt  v.  Mensch  et  al.,  41  111.  App.  403. 
3  Robinson  v.  ('rummer.  5  (lilman  (111.),  218. 


LOO  GROWTH    OF    THE    ACTION.  |    §   85, 

2.  A  forcible  entry,  with  actual  force. 

3.  A  wrongful  holding  over.1 

Under  the  Kevised  Statutes  of  Illinois.  LS45,  forcible 
entry  or  forcible  detainer  could  be  maintained  in  three 
cases  only  :  First.  Where  there  was  a  wrongful  or 
illegal  entrv.  as  contradistinguished  from  a  forcible  and 
violent  entry.  Second.  Where  the  entry  is  forcible  by 
means  of  actual  violence.  Third.  Where  a  tenant 
wrongfully  holds  over  after  the  expiration  of  the  time 
for  which  tin-  premises  have  been  1(4  to  him.'"' 

There  are  four  cases  in  which  forcible  entry  and 
detainer  may  be  maintained  in  this  State.  Fist.  Where 
there  has  been  a  wrongful  or  illegal  entry  upon  the  pos- 
session of  another.  Second '.  Where  there  has  been  a  forcible 
entry  upon  such  possession.  Third.  Where  any  person 
may  be  settled  upon  the  public  lands  within  this  State  when 
the  same  have  not  been  sold  by  the  general  government ; 
and  Fov rih .  When  there  has  been  a  wr<  mgful  holding  over 
by  a  tenant  after  the  expiration  of  the  time  for  which 
the  premises  may  have  been  let  to  him." 

The  act  of  1861  .session  laws,  p.  176)  brings  within 
the  reach  of  this  action  two  additional  cases:  First. 
Where  a  vendee  under  a  contract  to  purchase  has  entered 
into  possession  and.  before  obtaining  a  deed,  refuses  to 
comply  with  the  contract ;  and  second ' :  where  lands  have 
been  sold  under  a  judgment  or  decree  and  the  party  to 
such  judgment  or  decree,  after  the  expiration  of  the  time 
of  redemption,  refuses,  after  demand  in  writing  by  the 

Atkinson  v.  Lester  et  al.,  2  111.  407. 
*  Jackson  v.  Warren.  32  111.  331. 
a  Whitaker  et  al.  v.  Gautier,  3  Gilman  (111.).  443. 


§86.]  PARTICULAR    CASES    STATED.  I'll 

purchaser  under  the  same,  to  surrender  possession 
thereof. ' 

One  in  the  lawful  possession  of  property,  as  a  tenant 
by  sufferance,  or  otherwise,  has  a  right  of  action  against 
all  persons  entering  against  his  will,  or  by  force.5 

§  SO.    Particular  cases  stated -The  owner  of  certain 

premises  having  leased  them  to  A.,  who  went  into  pos- 
session, upon  the  expiration  of  such  lease  let  the  premises 
by  a  verbal  lease  to  !>.,  who,  with  the  consent  of  A., 
took  possession  and  proceeded  to  cultivate  the  land.  A., 
however,  subsequently  refused  to  quit  the  premises.  In 
this  case  the  landlord,  having  parted  with  his  right  to 
the  possession,  could  not  maintain  forcible  detainer 
against  A.  to  recover  the  premises;  the  verbal  lease  was 
a  legal  and  binding  letting  of  the  premises  and  entitled 
B.  to  the  possession,  which  he  actually  obtained  with 
the  assent  of  A.,  and  he  alone  could  bring  the  action.3 

Where  a  tenant  is  in  the  lawful  possession  of  the 
premises,  either  as  tenant  by  sufferance  or  otherwise,  an 
entry  made  against  his  will  or  by  force  is  unlawful  and 
the  action  of  forcible  entry  and  detainer  will  lie. ' 

Thus,  where  a  sub-tenant  quit  and  delivered  the  key  to 
the  tenant,  who  was  about  to  move  into  the  house  when 
the  sub-tenant  borrowed  the  key  and  gave  it  to  the  land- 
lord, who  thereupon  took  possession,  it  was  held,  that 
the  tenant  could  maintain  forcible  detainer  against  the 
landlord.  ' 

1  Jackson  v.  Warren.  82  111.  331. 

-  Knight  v.  Knight  et  al.,  3  111.  App.  206. 

3  Gradle  v.  Warner,  140  111.  123. 

4  Knight  v.  Knight  et  al..  3  111.  App.  206. 

5  Haupt  v.  Pittaluga,  6  Bush.  493. 


10'j  RIGHT    OF    EXCLUSIVE    POSSESSION.  [§87. 

The  action  may  be  maintained  by  a  tenant  at  will,  by 
executors  and  administrators,  by  receivers  and  generally 
by  any  person  whose  possession  or  right  of  possession  has 
been  unlawfully  invaded. ' 

If  the  right  of  immediate  possession  is  in  the  tenant, 
the  action  of  forcible  entry  and  detainer  must  be  brought 
by  him." 

The  party  entitled  to  the  possession  of  property  having 
abandoned  it  by  allowing  fences  to  be  removed  without 
repair  or  keeping  them  up,  this  state  of  case  showed  an 
abandonment  of  the  premises  as  strongly  as  it  did  a 
retention  thereof,  and  the  action  of  forcible  entry  and 
detainer  could  not  be  sustained.3 

§  87.  Right  of  exclusive  possession  requisite.— The 
plaintiff  is  not  entitled  to  recover  in  an  action  of  forcible 
entry  and  detainer,  unless  he  has  the  right  of  exclusive 
possession.  To  maintain  the  action  of  forcible  entry  and 
detainer,  it  is  not  necessary  that  the  plaintiff  should  have 
a  'pedis  possessio;  it  is  sufficient  if  the  premises  are  used 
and  occupied  for  some  useful  purpose;  but  if  such  pos- 
session is  joint,  as  to  different  persons,  neither  one  would 
be  entitled  to  the  exclusive  possession.' 

The  right  of  action  rests  alone  in  the  party  entitled  to 
the  possession,  and  if  the  landlord  has  alienated  the 
reversion  during  the  continuance  of  the  lease,  then  his 
alienee  is  entitled  to  the  possession  at  its  termination  and 

1  Commonwealth  v.  Biglow.  :J  Pick.  (Mass.  i  31;  Jones  v.  Shay,  60 
Cat.  508;  Beezley  v.  Burnett,  13  la.  192:  Rice  v.  Brown.  77  111.  549: 
Spear  v.  Lomax.  42  Ala.  516;  Baker  v.  Cooper,  51  Me.  338. 

-  Thomasson  v.  Wilson.  146  111.  :584. 

3  Hassett  v.  Johnson.  48  111.  68.  ■ 

••Jamison  v.  Graham.  57  111.  94. 


§87.]  RIGHT    OF    EXCLUSIVE    POSSESSION.  L.03 

must  make  the  demand  therefor  and  bring  the  action  to 
recover  the  possession.  Where  A.  executes  a  lease  to  B. , 
to  take  effect  after  a  former  tenancy  had  expired.  B.  was 
entitled  to  the  possession  of  the  premises  upon  the  expira- 
tion of  the  former  lease  and  must  bring  suit  for  their 
possession.1 

The  lessee  under  a  new  lease  may  re-claim  possession 
of  such  premises  and  put  the  old  tenant  out." 

1  Ball  v.  Chadwick  et  al.,'46  111.  28. 
-Webb  v.  Heyman,  40  111.  App.  335. 


lll-l-  ill  l:    GENERAL    RULE.  j    .^   88. 


CHAPTEK    VI. 

AGAINST  WHOM  THE  ACTION  WILL  LIE. 

Section  88.  The  general  rule. 

89.  What  persons  included  as  defendants. 

90.  When  action  will  not  lie. 

91.  Joint  occupants— joint  tenants. 

§  88.  The  general  rule. — As  a  general  rule,  the  per- 
son in  actual  possession  of  the  premises  detained,  at  the 
Time  of  the  commencement  of  the  action,  is  the  one 
against,  whom  it  should  be  brought.  The  right  is  not 
confined  to  the  disseisor,  but  may  be  maintained  against 
liis  representatives  and  all  those  in  possession  under  him.1 

A  landlord,  upon  the  termination  of  the  tenancy,  has 
the  right  to  maintain  forcible  detainer  against  the  tenant 
or  any  person  in  possession  by.  through  or  under  him, 
wlio  may  hold  over.2 

Where  the  entry  into  lands  and  tenements  was  made 
by  a  party  who  did  not  participate  in  the  act,  but  such 
act  was  done  by  others  under  his  direction  or  by  his  pro- 
curement, the  action  would  lie  against  him.3 

The  owner  of  real  estate  which  is  in  the  peaceable  pos- 
session and  occupancy  of  another,  though  without  right, 
cannot  enter  by  force  against  the  will  of  the  tenant  and 
expel  him  without  rendering  himself  liable  as  a  tres- 
passer." 

■Jackson  v.  Warren,  32  111.  331;  People  v.  McAdam,  S4  X.  Y.  2^7. 
2Thomasson  v.  Wilson,  146  111.  384. 

3  Minturn  v.  Burr.  20  Cal.  4*. 

4  Westcott  v.  Arbuckle  et  al..  12  III.  App.  .177. 


88  89,    90.]  WHAT    PERSONS    DEFENDANTS.  L05 

Where  the  person  in  actual  possession  of  land  is  a  sub- 
tenant, he  occupies  the  place  of  the  tenant  and  is  liable 
to  the  action.1 

Where  a  tenant  has  entered  into  the  possession  of 
premises  peaceably  and  in  good  faith  under  one  who  has 
previously  made  a  forcible  entry,  not  being  privy  to  the 
wrongful  act  of  the  grantor  or  having  any  knowledge  of 
it,  he  is  not  liable  to  be  turned  out  by  an  action  of 
forcible  entry  and  detainer.2 

§  89.  What  persons  included  as  defendants — In  case 
of  a  tenant  holding  over  against  his  landlord,  either  the 
tenant  or  any  person  claiming  under  him  is  liable  to  this 
action.2 

Where  a  tenant  in  peaceable  possession  of  bind  under 
an  unexpired  lease,  is  forcibly  dispossessed  by  a  constable 
under  a  writ  of  restitution  for  different  premises,  the 
tenant,  after  demand  made  in  writing,  may  regain  pos- 
session by  the  action  of  forcible  entry  and  detainer.  The 
writ  of  possession  for  another  and  different  premises 
could  not  be  pleaded  in  evidence  in  justification  of  the 
eviction." 

Where  a  tenant  continues  in  possession  after  notice 
imposing  new  terms,  such  holding  over  after  the  expira- 
tion of  his  term  in  no  wise  changes  the  relation  of  the 
parties,  and  an  action  will  lie  for  use  and  occupation 
upon  the  new  terms.' 

§  90.  Where  the  action  will  not  lie. — The  question 

1  Reed  v.  Hawley,  45  III.  40;  Bird  v.  Fannon,  3  Head  (Term.),  12. 
-  Clark  v.  Barker,  44  111.  349. 
3Hubner  v.Feige,  90  111.  20S. 
4  Higgins  v.  Halligan.  40  111.  173. 


106  WHERE    ACTION     WILL    NOT    LIE.  [§90. 

of  forcible  entry  and  detainer  will  not  lie  to  recover  an 
incorporeal  right,  upon  which  no  forcible  entry  can  in 
fact  be  made.  For  example:  the  action  will  not  lie  for 
forcibly  taking  possession  of  a  ferry,  with  the  adjacent 
banks  and  shores  of  the  river,  as  the  ferry  is  an  incorpo- 
real right,  upon  which  no  entry  can  in  fact  be  made; 
nor  can  a  sheriff,  under  a  judgment  of  restitution,  deliver 
possession  of  a  ferry.' 

Nor  does  the  action  lie  for  forcibly  entering  upon  a 
weir,  because  that  is  personal  property." 

Personal  property  cannot  be  recovered  in  an  action  of 
forcible  entry  and  detainer. :I 

In  unlawful  detainer  by  the  husband's  vendor  to  recover 
possession  of  premises  contracted  for  in  his  name,  but  as 
trustee  for  his  wife,  she  is  not  a  necessary  party.4 

A  party  cannot  divide  an  entire  demand,  so  as  to  main- 
tain several  actions  for  its  recovery." 

Courts  of  law  will  not  take  cognizance  of  separate 
causes  of  action' against  different  parties  in  the  same  suit." 

An  action  of  forcible  entry  and  detainer  cannot  be 
maintained  against  two  or  more  who  hold  in  severalty.7 

Where  different  tenants  have  successively  paid  rent  to 
the  wrong  party,  after  notice,  it  is  improper  to  enter  a 
decree  requiring  all  of  these  tenants  and  the  person  to 
whom  they  paid   the  rent    to   pay  the  whole  amount,  so 

1  Rees  v.  Lawless,  (i  Litt.  184. 

Van  Arken  v.  Decker.  —  Paine,  108. 
3  Hoffman  v.  Reichert  et  al..  31  111.  App.  558. 
-1  Williamson  v.  Paxton,  18  Gratt.  (Va.)  475. 
5LaSalle  Co.  Mfg.  Co.  v.  The  City  of  Ottawa,  16  111.  41s. 
6  ( 'asselberry  v.  Forquer,  27  111.  17<>. 
"  Reynolds  v.  Thomas  et  al.,  17  111.  207. 


§91.]  JOINT    OCCUPANTS.  1<»T 

wrongfully  paid,  to  the  party  entitled  to  it.  The  party 
receiving  the  rent  is  liable  for  the  whole  amount  received, 
but  each  tenant  is  only  liable  for  the  amount  which 
accrued  during  his  tenancy.1 

The  Illinois  statute  is  more  comprehensive  than  the 
English  act  in  this,  that  it  authorizes  an  action  against 
a  lessee  who  holds  over  after  the  termination  of  his  lease, 
whether  he  holds  by  force  or  not.  provided  the  lessor  has 
given  him  notice  to  tjuit.2 

If  the  plaintiff  has  leased  the  premises  to  the  tenant, 
who  is  in  actual  possession  at  the  time  of  a  forcible  entry 
thereon  by  another,  the  plaintiff  cannot  maintain  the 
action,  because  not  entitled  to  the  possession. 

The  action  for  unlawful  detainer  of  demised  premises 
will  not  lie  against  a  claimant  not  in  possession.4 

An  action  for  unlawful  detainer  of  demised  premises 
will  lie  against  a  city.6 

^  91.  Joint  occupants — Joint  tenants.— If  the  occu- 
pation of  premises  was  joint,  as  to  different  persons, 
neither  one  would  be  entitled  to  the  exclusive  possession. 
It  was  held  in  Mason  r.  Finch,  1  Scammon  495,  that 
a  joint  tenant  should  be  entitled  to  the  benefit  of  this  act, 
but  it  seems  that  a  joint  tenant  cannot  recover  the  exelusivt 
possession  and  would  only  be  entitled  to  a  judgment  for 
"an  undivided  interest."  The  Supreme  Court  again 
says,  that  "it  is  contended,  in  argument,  that  one  joint 
tenant,    who    unlawfully    and    forcibly    excludes   his  C0- 

Davenport  et  al.  v.  Haynie  et  al..  30  111.  59. 

2  Mason  v.  Finch,  3  111.  495. 

3  Mann  v.  Brady,  67  111.  95;  Yocler  v.  Earley,  'J  Dana  (Ky.),  24o. 

4  Preston  v.  Kehoe,  10  Cat.  445. 

5  Rains  v.  Oshkosh,  14  Wis.  372. 


LOS  JOINT    OCCUPANTS.  |   §  91. 

tenant,  is  liable  in  this  action.  This  principle,  if  correct, 
is  not  involved  in  this  case.  Appellee  seeks  to  recover 
the  entire  premises.  He  elaitns  the  use  ol'  the  whole, 
and  not  a  part  of  the  pasture.  If  the  parties  had  a  joint 
right,  this  would  be  inconsistent  with  the  exclusive  use, 
by  either,  without  an  agreement  between  them.'  It 
would  be  absurd  to  hold  that  one  joint  tenant  can  deprive 
Ins  co-tenant  of  all  participation  in  a  common  right."* 

1  Jamison  v.  Graham,  57  Ii.  94. 


8  92.1  KIND    OF    POSSESSION    NECESSARY.  1 09 


CHAPTER    VII. 

POSSESSION. 

Section  92.  The  kind  of  possession  necessary  for  plaintiff. 

93.  Pedis  possessio  unnecessary. 

94.  Constructive  possession. 

95.  Extent  of  possession. 

96.  Judgment  for  part  only. 

97.  The  demand  of  possession. 

98.  Demand  in  writing. 

99.  The  service  of  demand. 

§  92.  The  kind  of  possession  necessary  for  plaintiff. 

— Where  the  plaintiff  in  an  action  of  forcible  entry  is  in 
the  bona  fide,  peaceable  possession  of  a  coal  mine  in  his 
own  right,  and  while  so  in  possession  the  defendant 
approaches  the  plaintiff's  employes  and  induces  them  to 
surrender  possession  to  him.  his  possession  thus  acquired 
is  unlawful  and  can  not  be  maintained.1 

In  order  to  recover  in  an  action  of  forcible  entry  and 
detainer,  the  plaintiff  must  prove  actual  and  peaceable 
possession  of  the  premises  by  him  at  the  time  of  the 
alleged  forcible  entry.2 

To  sustain  an  action  of  forcible  entry  and  detainer,  the 
plaintiff  must  show  that  he  had  actual  possession  of  the 
premises.  The  mere  constructive  entry,  such  as  the  Pee 
simple  title  draws  to  it,  is  not  sufficient.3 

It  does  not  require  the  actual  pedis  possessio  to  support 

1  Hoffman  v.  Reichert  et  al.,  147  111.  274. 
-  Mann  v.  Brady.  67  111.  95. 
McCartnev  v.  McMullen.  38  111.  237. 


110  KIND    <>K    POSSESSION    NECESSARY.  j    §   92. 

the  action  of  forcible  entry  and  detainer.  Actual  pos- 
session may  exist,  as  in  the  case  of  a  wood-lot.  unen- 
closed but  used  as  an  adjunct  to  a  farm  from  which  the 
latter  is  supplied  with  timber,  wood  and  rails.1 

The  plaintiff,  to  recover  in  an  action  of  forcible  entry 
and  detainer,  must  show  that  he  had.  at  the  time  of  the 
alleged  entry,  the  actual  possession  of  the  premises;  a 
mere  constructive  possession  is  not  sufficient." 

A  person  may  have  had  possession  of  property  con- 
structively, while  he  was  never,  in  fact,  on  the  land,  and 
whether  he  had  such  possession  or  not  is  always  a  ques- 
tion for  the  jury. 

In  Spurch  v.  Forsyth,  40  111.  438,  it  was  held  a  suffi- 
cient actual  possession  that  the  plaintiff,  while  he  did  not 
reside  on  the  premises,  owned  and  improved  them  and 
that  they  furnished  "visible  tokens  of  occupancy,  such 
as  fences,  buildings  and  cultivation;"  showing  the  actual 
possession  of  part  of  the  premises,  with  the  claim  on  the 
whole,  if  the  claim  is  reasonable  and  bona  fide.* 

Keeping  goods  on  the  premises  was  held  sufficient. 

The  possession  necessary  in  the  plaintiff  to  support  the 
action  of  forcible  entry  and  detainer  must  be  bona  fide. 
Where  an  occupant  was  driven  from  his  home  by  high 
water  and  returned  when  permitted  to  do  so,  such  tempo- 
rary absence  would  not  destroy  his  possession.  On  the 
other  hand,  a  party  attempting  to  get  possession  by  going 

1  Pearson  v.  Herr,  53  111.  144. 

2  Thompson  v.  Sornberger,  59  111.  326". 

3  Carson  et  al.  v.  Crigler,  9  111.  App.  83. 

4  Hardisty  v.  Glenn.  32  111.  t>2. 

5  Wall  v.  Goodenough.  16  111.  415:  Baker  v.  Hays.  38  111.  387. 


§93.]  PEDIS    P06SE88IO    UNNECESSARY.  Ill 

on  the  land,  plowing  one-half  day  and   then  departing-, 
did  not  have  sufficient  possession.1 

The  delivery  of  a  key  of  a  house  to  a  person  other 
than  the  landlord,  or  his  heir,  will  not  transfer  a  right  of 
possession  to  such  person,  unless  he  has  acquired  the 
interest  of  the  landlord  or  his  heirs.2 

Where  a  director  and  treasurer  of  a  mining  corpora- 
tion takes  possession  of  the  mine,  his  possession  will  be 
that  of  the  company;  and  if  the  corporation  obtains 
possession  through  other  officers,  he  can  not  maintain 
forcible  entry  and  detainer  against  the  corporation, 
although  he  may  have  become  the  purchaser  of  the  mine 
under  a  sheriff's  sale,  if  the  time  for  redemption  has  not 
expired. :1 

§  93.  Pedis  possessio  unnecessary. — The  legal- title  or 
fee  draws  to  it  the  legal  possession  of  land,  but  where 
a  pedis  possessio  is  relied  on,  it  must  be  open,  exclusive 
and  public.  The  acts  indicating  possession  must  be  such 
as  men  generally  employ  in  the  enjoyment  of  property, 
and  these  acts  should  he  continuous,  not  merely  oc- 
casional.4 

Possession  continued  for  a  period  of  over  twenty  years, 
of  a  part  of  a  tract  of  land,  and  the  exercise  of  acts  of 
ownership  over  the  residue,  under  claim  of  title  to  the 
whole,  constitutes  such  a  possession  as  will  authorize  the 
possessor  to  maintain  the  appropriate  action  against  a 
stranger  who  interferes  with  his  possession  or  injures  the 
inheritance. ' 

1  McHan  v.  Stansell,  39  Ga.  197:  DeGraw  v.  Prior,  60  Mo.  56. 
-  Doty  v.  Burdick,  83  111.  473. 

3  Hoffman  v.  Reichert  et  al.,  147  111.  274. 

4  Hassett  v.  Johnson,  48  111.  68. 
5Fairmanv.  Beal.  14  111.  244. 


1  1  2  CONSTRUCTIVE    POSSESSION.  [§94. 

Where  a  tenant  vacates  the  premises  and  the  landlord 
has  possession  by  placing  goods  therein,  he  may  maintain 
a  proceeding  for  forcible  entry  against  an  intruder  with- 
out making  a  formal  re-entry.1 

§  94.  Constructive  possession. — Where  the  owner  of 
premises  had  leased  them  for  one  year  and,  at  the  expi- 
ration of  the  term,  went  to  the  farm  and  carried  there 
a  load  of  goods,  and  the  tenant  carried  them  upstairs 
into  a  room  and  stated  that  he  rendered  up  possession, 
and  the  landlord  performed  some  acts  preparatory  to 
occupying  the  house  and  left  with  the  intention  of  return- 
ing on  the  following  Monday,  and  had  a  deed  for  the 
whole  premises,  it  was  held,  that  this  showed  a  sufficient 
possession  of  the  premises  to  enable  the  landlord  to  main- 
tain forcible  entry  and  detainer  against  one  taking  pos- 
session before  his  return." 

A  party  having  purchased  a  piece  of  wood-land, 
entered  upon  it,  built  a  log-cabin,  made  rails  and  then 
left  it  for  a  temporary  purpose  and  was  absent  two 
weeks,  leaving  his  tools  in  the  cabin,  intending  to  move 
into  it  in  a  short  time.  During  his  absence,  a  second 
party,  who  had  rented  the  same  land  from  another 
claimant,  went  on  to  the  land,  completed  the  cabin, 
built  a  fence  around  it,  made  a  door  to  the  house,  placed 
some  articles  of  his  own  into  it,  locked  the  door  and  went 
away.  The  first  party,  on  his  return,  finding  the  place 
as  the  second  party  had  left  it,  went  into  the  house  and 
held  possession,  whereupon  the  second  party  brought  an 
action  of  forcible   entry  and   detainer  against   him.      In 

1  Wall  v.  Goodenough,  16  111.  415. 
6  Huftalin  v.  Misner,  70  111.  205. 


§95.]  THE    EXTENT    OF    POSSESSION.  1  1  lJ> 

this  case  it  was  held,  that  the  defendant's  acts  did  not 
show  an  abandonment  of  the  possession;  that  his  pos- 
session continued  during  his  two  weeks'  absence  and  was 
such  a  possession  as  to  entitle  him  to  hold  the  premises 
in  law,  the  acts  of  the  second  party  being  trespasses.1 

Any  use  of  the  premises  which  shows  an  intention  to 
hold  possession  for  the  purpose  of  cultivation,  improve- 
ment or  applying  them  to  the  uses  for  which  they  may 
be  fitted,  is  sufficient.2 

In  California  it  has  been  held,  that  a  constructive  and 
scrambling  possession  is  not  sufficient.3 

§  95.  The  extent  of  possession The  defendant  in 

an  action  of  forcible  detainer  for  a  tract  of  land  cannot 
defeat  the  same  by  proof  that  he  was  in  possession  of 
only  the  house  and  garden  situated  on  the  tract.4 

Where  a  lease  of  a  building  does  not  in  terms  convey 
any  right  to  a  passage  way  to  buildings  in  the  rear  of 
that  leased,  or  any  right  to  such  buildings  in  the  rear, 
the  most  that  can  be  claimed  is,  that  the  lease  conveys  so 
much  of  the  lot  on  which  the  building  stands  as  may  be 
necessary  to  the  complete  enjoyment  of  the  leased  build- 
ing for  the  purpose  for  which  it  is  rented/ 

The  possession  of  a  farm  draws  to  it  the  possession  of 
the  wood-land  belonging  to  it,  though  not  enclosed, 
especially  if  repeated  and  unchallenged  acts  of  ownership 
are  shown.' 

1  Haley  v.  Palmer,  9  Dana  (Ky.),  320. 
-  Bradley  v.  West,  60  Mo.  59. 

3  Vail  v.  Butler.  49  Cal.  74. 

4  Rice  v.  Brown,  77  III.  549. 

5  Patterson  et  al.  v.  Graham,  140  111.  531. 

6  Pearson  t.  Herr,  53  111.  144. 

S 


114  JUDGMENT    FOR    PART    ONLY.  [§96. 

A  lessee  of  land  bordering  on  a  stream,  not  navigable, 
at  common  law  is  entitled  to  the  accretions  thereto  caused 
by  the  receding  of  the  stream,  or  a  change  in  its  current, 
during  his  term,  even  though  the  bank  of  the  stream  is 
named  as  boundary  of  the  demised  premises.' 

It  was  formerly  the  law,  that  the  possession,  so  far  as 
extent  was  concerned,  must  be  proved  as  alleged  in  the 
complaint.  {Thompson  v.  Sornberger,  59  111.  326);  that 
is,  suit  could  not  be  brought  for  a  certain  tract  of  land 
described  in  the  complaint,  and  possession  recovered  of 
any  other  property  than  that  described.  A  party  could 
not  sue  for  one  thing  and  recover  another.  Pleadings 
must  be  reasonably  full  and  accurate. 

Thus,  where  the  plaintiff  claimed  the  possession  of  the 
entire  house,  she  could  not  recover  possession,  as  a  tenant 
in  common,  of  either  the  whole  or  a  part;  the  court  say- 
ing :  L '  To  permit  such  a  recovery  would  violate  the 
plainest  and  most  simple  rule  of  pleading  evidence  and 
practice.  How  can  it  be  said  that,  because  she  has 
shown  that  she  occupied  the  greater  portion  of  the  house 
in  common  with  Rich,  by  his  permission,  she  had,  there- 
fore, the  right  to  the  sole  and  exclusive  possession  of  all 
of  that  portion?  Such  a  variance  is  too  broad  and  pal- 
pable to  be  disregarded." 

§  96.  Judgment  for  part  only. — "  Nor  is  the  aver- 
ment, that  the  plaintiff  was  in  the  sole  and  exclusive  pos- 
session of  a  house,  sustained  by  proof  that  she  was  so 
possessed  of  but  two  of  a  number  of  rooms  in  the  house; 
such  evidence  does  not  tend  to  sustain  the  averment  in 
the  plaint.      It  establishes  a  different  case  from  that  made 

'Cobb  v.  Lavalle,  89  111.  331. 


§    97.]  THE    DKMAMi    OF    POSSESSION.  1  1 ."» 

in  the  pleadings,  and  so  far  different  that  the  court,  on 
being  asked,  should  have  excluded  it  from  the  considera- 
tion of  the  jury;'  but  the  statute  of  Illinois  now  pro- 
vides. ••  If  it  shall  appear  that  the  plaintiff  is  entitled  to 
only  a  part  of  the  premises  claimed,  the  judgment  and 
execution  shall  be  for  that  part  only  and  for  costs,  and 
for  the  residue  the  defendant  shall  be  found  not  guilty."" 

§  97.  The  demand  of  possession — Return — Form 

Sec.  3;  The  demand  required  by  the  preceding  section 
may  be  made  by  delivering  a  copy  thereof  to  the  tenant, 
or  by  leaving  such  a  copy  with  some  person  above  the 
age  of  twelve  years,  residing  on  or  being  in  charge  of 
the  premises;  or  in  case  no  one  is  in  actual  possession  of 
the  premises,  then  by  posting  the  same  on  the  premises. 
When  any  such  demand  is  made  by  an  officer  authorized 
to  serve  process,  his  return  shall  be  prima  facie  evidence 
of  the  facts  therein  stated,  and  if  such  demand  is  made 
by  any  person  not  an  officer,  the  return  may  be  sworn 
to  by  the  person  serving  the  same  and  shall  then  be 
prima  facie  evidence  of  the  facts  therein  stated.  Which 
demand  for  possession  may  be  in  the  following  form  : 
'•To : 

I  hereby  demand  immediate  possession  of  the  follow- 
ing described  premises  y'     (Describing  the  same.  | 

Which  demand  shall  be  signed  by  the  person  claiming 
such  possession,  his  attorney  or  agent. 

Besides  notice  to  terminate  the  tenancy,  another 
notice  or  a  demand  for  possession  is  required,  which  is 
distinct  and  different  from  the  former  notice.      The  notice 

1  Smith  v.  Killeck,  5  Gilm.  293;    Dunne  v.   The   Trustees,   etc.,  39 
111.  578. 


116  DEMAND    IN     WRITING.  [  £  98. 

should  show  clearly,  who  claims  to  be  entitled  to  the  pos- 
session of  the  premises  and  who  makes  the  demand,  and 
it  should  be  made  by  the  person  for  whose  use  the  prem- 
ises are  demanded,  or  by  his  duly  authorized  agent  or 
attorney.1 

§  98.  Demand  in  writing. — A  demand  in  writing  is  a 
condition-precedent  of  plaintiff's  right  to  recover  in  an 
action  of  forcible  entry  and  detainer.8 

In  forcible  detainer,  a  party  claiming  the  possession 
must  show  not  only,  that  he  is  entitled  to  possession,  but 
that  the  defendant  unlawfully  withholds  such  possession 
after  demand  made  ;  and  where  the  plaintiff  claimed  pos- 
session under  a  foreclosure  sale,  it  was  held  that  a  demand 
should  have  been  made  upon  the  husband  and  wife,  who 
were  both  parties  to  the  foreclosure  proceeding  and  were 
both  in  possession  of  the  premises.' 

A  demand  in  writing  for  possession  is  essential  to  the 
recovery  of  penalty  of  double  rent  for  willfully  holding- 
over  after  the  expiration  of  the  term.4 

It  is  essential  that  the  demand  should  be  shown  to  be 
genuine,  either  signed  by  the  person  entitled  to  posses- 
sion or  some  one  authorized  by  him,  or  at  least  recognized 
by  him. 

Demand  for  possession  for  the  purposes  of  a  suit  of 
forcible  entry  and  detainer  should  be  made  after  the 
expiration  of  the  lease.0 

1  Doran  v.  Gillespie.  54  111.  36G;  Post  v.  Bohner,  36  N.   W.  Rep. 
Neb.)  208;  Dimmett  v.  Appleton,  20  Neb.  208. 
-  Lehman  v.  Whittington,  8  111.  App.  374. 
3  Wheelan  v.  Fish,  2  111.  App.  447. 
••Belles  v.  Anderson,  38  111.  App.  128. 
5  BaU  v.  Peck,  43  111.  482. 
•;  Prickett  v.  Bitter.  16  111.  96. 


§99.]  THE    SERVICE    OF    DEMAND.  117 

A  demand  in  writing  for  possession,  to  be  made  upon 
the  tenant,  to  authorize  an  action  of  forcible  detainer 
against  him,  should  be  made  after  the  termination  of  the 
time  for  which  the  premises  were  let ;  a  demand  before 
that  time  would  not  avail.1 

In  a  forcible  entry  and  detainer  suit  the  plaintiff  testi- 
fied, that  he  served  the  demand  for  possession  of  the 
premises  on  the  defendant  on  a  given  day,  which  was  the 
same  day  suit  was  brought.  Held,  that  this  proof  was 
sufficient  to  sustain  the  finding  of  service  before  the  suit 
was  brought,  if  any  demand  was  necessary. 

The  statute  relating  to  forcible  entry  and  detainer,  and 
which  requires  a  demand  in  writing  for  possession,  does 
not  require  the  demand  to  be  made  within  a  reasonable 
time  or  any  definite  time  before  the  commencement  of 
the  suit.2 

§  99.  The  service  of  demand. — This  demand  for  pos- 
session should  be  made  after  the  determination  of  the 
time  for  which  the  premises  were  let;  a  demand  made 
before  that  time  will  not  avail. 

There  must  be  proof  of  service  of  a  written  demand 
made  before  the  commencement  of  the  suit.  No  pre- 
sumption of  its  being  served  arises  from  the  fact  of  its 
being;  admitted  in  evidence. 

A  demand  of  possession  by  the  landlord  which  is  served 
by  his  agent,  where  the  demand  itself  discloses  the  fact 
of  the  agency  of  the  person  serving  the  same,  is  sufficient. 

The  demand  for  possession  must  be  ma.de  or  served  by 

1  Doran  v.  Gillespie,  54  111.  86G. 

5Huftalin  v.  Misner,  70  111.  205;  Doran  v.  Gillespie,  54  111.  3GG; 
Lehman  v.  Whittington,  8  111.  App.  374;  Nixon  v.  Noble,  70  111.  32; 
Vennum  v.  Vennum,  56  111.  430, 


118  THE    SERVICE    OF    DEMAND.  (^  §  99. 

the  plaintiff  or  by  some  person  authorized  by  him  to 
serve  it. 

The  supreme  court  held,  in  1807,  that  "  the  service  of 
the  demand"  is  a  fact  which  must  be  established,  in  the 
usual  mode  of  making  proof,  clearly,  according  to  the 
rules  of  evidence.  The  witness  making  the  service 
should  be  called.  Officers,  onlv,  are  authorized  to  make 
return  of  service  of  process,  unless  it  be  in  a  few  cases 
where  the  law  authorized  private  individuals  to  make  a 
sworn  return.  The  person  who  served  the  notice  should 
have  been  called  to  prove  that  fact.      See  §  107. ' 

In  an  action  of  forcible  detainer  by  a  purchaser  under 
a  foreclosure  sale,  the  plaintiff  must  prove  not  only  a 
demand  for  possession,  but  also  that  the  defendant 
neglected  or  refused  to  surrender  possession  after  such 
demand.2 

Before  the  mortgagees  can  maintain  replevin  to  recover 
the  possession  of  goods  or  trover  for  their  value,  thev 
must  have  demanded  possession  of  the  same  before 
bringing  the  suit,  and  this  demand  must  be  properly 
proven.3 

1  Ball  v.  Peck,  43  111.  482. 

2  Hersey  et  al.  v.  Westover,  11  111.  App.  197. 

3Holliday  et  al.  v.  Bartholoma?  et  al.,  11  HI.  App.  206;  Simons  v. 
Jenkins,  76  111.  479;  Rev.  Stat.,  ch.  80,  gg  10,  11. 


_^    100.]  POSSESSION    OF    TENANTS.  119 


CHAPTER  VIII. 

TERMINATION  OF  THE  TENANCY  AND  HEREIN  OF  NOTICE 
TO  QUIT  AND  DEMAND. 

Section  100.  Possession  of  tenants. 

101.  Notice— How  signed. 

102.  Notice — How  served. 

103.  Agency — How  proven. 

104.  Parol  leasing  for  more  than  one  year. 

105.  Delivery  of  key  and  the  acceptance  of  premises. 

106.  Statutes  of  1865  construed. 

107.  How  demand  should  be  made. 

108.  Yearly  tenancy — Notice. 

109.  When  demand  made. 

110.  When  lease  expires. 

§  100.  Possession  of  tenants. — Tenants  obtain  pos- 
session by  virtue  of  a  lease,  and  can  remain  in  possession. 
lawfully,  only  during  the  continuance  of  that  lease. 

Leases  expire  by  their  own  limitation,  or  they  may  be 
forfeited  in  various  ways  particularly  set  forth  in  the 
lease,  and  may  also  be  forfeited  in  other  ways,  such  as 
attorning-  to  a  stranger,  denying  the  title  of  the  landlord, 
etc. 

Where  a  lease  expires  by  its  own  limitation,  the  ten- 
ancy is  ipso  facto  ended,  and  the  right  of  possession 
reverts  instantaneously  to  the  landlord:  and  in  this  ease 
no  notice  to  quit  is  necessary,  because  all  parties  to  the 
lease  have  full  notice  of  its  provisions. ' 

But  where  a  landlord  elects  to  terminate  tin/  lease  for 

'Rev.  Stat.,  ch.  80,  sec.  12. 


X 


120  POSSESSION    OF    TENANTS.  [    §    100. 

a  breach  of  covenants,  he  must  give  the  tenant  notice.1 

And  where  the  tenancy  is  for  an  indefinite  period,  a 
reasonable  notice  to  quit  is  necessary  to  terminate  the 
tenancy.  And  it  seems,  that  where  a  notice  is  required, 
it  must  be  given  a  due  length  of  time  before  the  expira- 
tion of  the  tenancy,  and  terminate  with  a  regular  period 
in  the  tenancy,  that  is,  at  the  end  of  a  year,  quarter  or 
month,  according  to  the  party's  right  to  terminate  it  by 
notice.  Where  default  is  made  in  the  terms  of  the  lease, 
the  statute  definitely  fixes  the  time  that  notice  is  required 
to  be  given  to  terminate  the  tenancy. 

The  Revised  Statutes,  chap.  SO,  sec.  9,  provides  as 
follows : 

"When  default  is  made  in  any  of  the  terms  of  the 
lease,  it  shall  not  be  necessary  to  give  more  than  ten 
days'  notice  to  quit,  or  of  the  termination  of  such  ten- 
ancy, and  the  same  may  be  terminated  on  giving  such 
notice  to  quit  at  any  time  after  such  default  in  any  of 
the  terms  of  the  lease,  and  no  other  notice  or  demand  of 
possession  or  termination  shall  be  necessary." 

And  in  case  of  a  tenancy  from  year  Jo  year,  the  same 
statute,  sec.  5,  provides:  "In  all  cases  of  tenancy  from 
year  to  year,  sixty  days'  notice  in  writing  shall  be  suffi- 
cient to  terminate  the  tenancy  at  the  end  of  the  year, 
the  notice  to  be  given  any  time  within  four  months  pre- 
ceding the  last  sixty  days  of  the  year. ' ' 

In  case  of  tenancy  by  the  month,  it  is  provided  by 
statute  that,  "in  all  cases  of  tenancy  by  the  month,  or 
for  any  other  term  less  than  one  year,  where  the  tenant 
holds  over  without  any  special  agreement,  the  landlord 

1  Ball  v.  Peck,  43  111.  482;  Rev.  Stat.,  chap.  80,  sec.  9. 


8    L01.1  NOTICE HOW    SIGNED.  1-1 

shall  have  the  right  to  terminate  the  tenancy  by  thirty 
days'  notice  in  writing,  and  to  maintain  the  action  of 
forcible  entry  and  detainer  or  ejectment." 

Where  premises  were  demised  by  parol  for  one  year  at 
a  stipulated  rent,  payable  monthly,  and  the  tenants  paid 
the  rent  as  it  accrued,  up  to  November,  1870,  the  lease 
being  void  by  force  of  the  statute  of  frauds,  they  became 
tenants  from  month  to  month,  and  were  entitled  to  a 
month's  notice  to  quit.2 

The  Demand  and  Notice  to  Quit. 

In  Ballance  et  al.  v.  Fortier  et  '//.,  o  Gilrn.  294,  it 
appears  that  a  demand  for  possession  made  in  general 
terms  is  sufficient.  It  must  be  a  demand  in  writing  for 
the  possession  of  the  premises,  describing  them  with  cer- 
tainty. And  where  a  party  was  notified  "to  quit  and 
deliver  up  possession,'"  it  was  held  sufficient,  the  court 
saying:  ki  The  demand  contains  more  than  is  necessary, 
but  this  will  not  vitiate.  It  requires  the  party  in  posses- 
sion '  to  quit  and  deliver  up  possession.'  This  is  a  full 
compliance  with  the  statute,  which  requires  a  *  demand 
in  writing."  "  ;i 

§  101.    Notice— How    signed. — This    notice   to   quit 

-  should  be  signed  by   the   landlord   or   his  agent,   and,   if 

signed  by  the  agent,  the  notice  must  discover  the  agency. 

which  must  afterward  be  proved  on  the  trial.     AVhere  a 

notice  says,  -l  John  Doe  by  Joseph  Smith,  his  authorized 

1  Rev.  Stat.,  chap.  80,  sec.  6. 

-Arch.   Landlord  and  Tenant,  66;    4  Kent's  Comm.   111.    112:    24 
Maine,  287;  11  Wend.  610;  Prickett  v.  Ritter.  16  111.  07. 
3Vennum  v.  Vennurn,  56  111.  434. 


122  HOW     NOTICE    SKUVKI).  [§102. 

agent,  hereby  demands, "  etc.,  and  then  is  signed,  "John 
Doe  by  Joseph  Smith,  his  agent,"  it  is  sufficient. 

So  a  demand  of  possession,  which  is  served  by  the 
landlord's  agent,  and  which  demand  itself  discloses  the 
fact  of  the  agency  of  the  person  serving  the  same,  is 
sufficient.1 

A  copy  of  the  notice  to  quit  should  be  left  with  the 
occupant.  A  demand  by  reading  to  the  tenant  is  not  a 
demand  in  writing;  the  statute  contemplates  a  written 
demand  which  the  tenant  can  examine." 

It  is  sufficient  service  of  a  notice  to  quit,  if  a  copy 
thereof  is  delivered  to  the  wife  of  the  tenant.3 

A  return,  that  there  was  no  one  in  actual  possession 
and  the  fact  that  notice  was  posted  on  the  premises, 
being  shown  by  affidavit,  constitute  compliance  with  sec. 
10,  chap.  SO,  Revised  Statutes.1 

It  was  never  intended  by  the  statute  to  enable  a  land- 
lord, in  case  his  tenant  was  temporarily  from  home,  to 
leave  a  notice  on  the  premises  and  turn  his  family  into 
the  streets  in  his  absence.  In  24  111.  p.  192,  the  court 
held,  that  reading  the  notice  to  the  tenant  was  not 
sufficient.0 

§  102.  How  notice  served. — A  copy  of  a  notice  to 
quit  should  be  left  with  the  occupant.  Reading  the  same 
to  defendant  is  insufficient. ,; 

1  Ball  v.  Peck,  43  III.  482;  Nixon  v.  Noble,  70  111   32. 
•Seem  v.  McLees.  24  111.  192;  Lehman  v.  Whittington,  8  Bradw 
374. 

3  Bell  v.  Brulm,  30  III.  App.  300. 

4  Consolidated  Coal  Co.  of  St.  Louis  v.  Schaefer,  31  111.  App.  36 1 

5  Doran  v.  Gillespie,  54  111.  366. 
•'Seem  v.  McLees,  24  111.  192. 


§  103.]  AGENCY HOW  PROVEN.  123 

A  notice  by  a  landlord  to  terminate  the  tenancy  for  a 
bread)  of  certain  conditions  in  the  lease  may  be  served 
by  posting  a  copy  thereof  upon  the  door  of  a  building  on 

the  demised  premises  when  the  tenant  lias  abandoned  the 
actual  possession,  and  the  fact  that  the  notice  may  speak 
of  the  premises  as  "  the  premises  now  occupied  by  you," 
will  not  void  the  notice.1 

A  notice  to  quit,  signed  "Cyrus  ML  Hawley,  by  Wm. 
C.  Proudy,  an  authorized  agent,"  is  substantially  good, 
but  should  have  been  "  his  authorized  agent."  3 

The  act  of  186 1 ,  prescribing  what  notice  shall  be  given 
a  tenant  in  order  to  terminate  the  lease,  has  reference 
only  to  cases  where  a  tenant  holds  over  after  his  term 
is  ended  and  does  not  contemplate  a  tenancy  at  will.' 

The  common  law  required  a  half  year's  notice  to  ter- 
minate a  tenancy  from  year  to  year.4 

Under  the  act  of  1861,  all  tenancies  less  than  one  year 
and  greater  than  one  month,  and  a  tenancy  by  the 
month,  require  thirty  days1  notice  to  terminate  them. 
Thirty  days'  notice  to  terminate  tenancies  less  than  one 
month  is  not  required.5 

A  landlord  may  terminate  a  lease  for  non-payment  of 
rent  by  giving  the  notice  prescribed  in  section  9  of  the 
Landlord  and  Tenant  Act,  as  well  as  by  pursuing  the 
remedy  prescribed  in  section  S.6 

§  103.    Agency— How   proven.  —  A   notice   to   quit 

1  Consolidated  Coal  Co.  of  St.  Louis  v.  Schaefer,  183  111.  210. 

3 Dunne  v.  Trustees  of  Schools,  39  111.  578. 

3  Reed  v.  Hawley,  45  III.  40. 

«  Walker  et  al.  v.  Ellis,  12  111.  470. 

5  Dunne  v.  Trustees  of  Schools,  39  111.  578. 

6  Dickeiisun  v.  Petrie,  38  III.  App.  155, 


124  PAROL    LEASING.  [§104. 

should  be  signed  by  the  landlord  or  a  properly  authorized 
agent,  and  to  authorize  a  recovery  in  forcible  detainer, 
this  must  be  proved.  This  cannot  be  done  by  producing 
a  copy  with  an  affidavit  of  the  service ;  the  witness  serv- 
ing it  should  be  produced  to  prove  the  service.1 

A  notice  to  terminate  a  tenancy  for  non-payment  of 
rent  is  not  defective  because  it  fails  to  mention  any  time 
for  the  payment  of  rent  due,  and  it  will  be  good  even  if 
it  misdescribes  the  number  of  the  lot,  when  it  is  apparent 
that  it  is  right  as  to  rent  and  lease  intended,  and  proof  is 
made,  without  objection,  that  the  lot  leased  and  the  one 
named  in  the  notice  are  the  same.2 

An  attorney  in  fact,  by  another  acting  for  him,  may 
serve  a  notice  upon  a  party  in  possession  as  a  foundation 
for  the  action  of  forcible  entry  and  detainer.3 

To  terminate  a  tenancy  by  the  month  or  week,  a  notice 
for  a  like  time  is  requisite,  which  should  be  fixed  by  the 
rent  day.4 

Where  a  tenant  holds  from  month  to  month,  he  is 
entitled  to  a  month's  notice  to  quit  before  an  action  of 
forcible  detainer  will  lie  against  him.' 

§  104.  Parol  leasing  for  more  than  one  year — 
Under  a  verbal  lease  of  premises  for  five  years  at  a 
monthly  rent,  it  is  leasing  from  month  to  month  and  the 
lessee  is  entitled  to  thirty  days  notice  to  terminate  the 
tenancy.6 

1  Ball  v.  Peck,  43  111.  482;  Vennum  v.  Vennum,  56  111.  430. 

2  Farnam  v.  Hohman,  90  111.  312. 
8  Eldridge  v.  Holway,  18  111.  445. 
4  Prickett  v.  Ritter,  16  111.  96. 

8  Seem  v.  McLees,  24  111.  192. 

6  Creighton  v.  Sanders,  89  111.  543. 


§   105.  |  DELIVERY    <)K    KEY.  1  2-"> 

In  case  of  a  tenancy  at  will,  a  notice  of  its  termination 
is  competent  evidence,  on  the  trial  of  an  action  of  forcible 
detainer,  to  recover  possession  by  the  landlord.1 

A  tenancy  at  will  is  terminated  by  a  demand  of  pos- 
session, without  any  notice  to  quit." 

The  tenancy  from  year  to  year,  although  commenced 
under  a  parol  agreement,  can  only  be  determined  by  the 
statutory  notice  of  sixty  days  in  writing. 

Where  there  is  an  occupation  and  tenancy  under  an 
agreement  for  the  pavment  of  rent  monthly,  a  lessee 
becomes  a  tenant  from  month  to  month  and  entitled  to 
thirty  days'  notice  to  quit,  and  if  he  desires  to  terminate 
the  tenancy,  he  must  give  the  landlord  a  like  notice;  the 
rights  of  the  parties  in  this  respect  are  equal.1 

If  a  tenant  remains  in  the  premises  after  the  determi- 
nation of  his  lease  by  the  death  of  the  lessor,  and  the 
owner  acquiesces  in  such  holding  over,  the  owner  can 
recover  the  reasonable  value  for  the  use  and  occupation 
of  the  premises  from  the  time  the  lease  was  terminated 
by  the  death  of  the  lessor." 

Where  land  is  occupied  under  a  lease  for  a  fixed  time, 
the  tenant  is  bound  to  surrender  possession  at  the  end  of 
the  time,  without  any  notice  to  quit  or  demand  of  pos- 
session." 

§  105.  Delivery  of  key  and  acceptance  of  premises. 

—  If  a  lessee  of  rooms,  before  the  expiration  of  the  term, 

:  Reynolds  v.  Gage,  91  111.  125. 

-  Dunne  v.  Trustees  of  Schools,  3!J  111.  578. 

3  Tanton  v.  VanAlstine,  24  111.  App.  405. 

4  5Hoagland  et  al.  v.  Crum.  113  111.  365. 

*  Schreibev  et  al.  v.  Chicago  &  Evanston  R.  R.  Co.,  115  111.  340. 


126  DELIVERY    OF    KEY.  [  ,^    L05. 

abandons  the  premises,  delivers  the  key  to  the  lessor's 
agent  and  notifies  the  lessor  of  the  fact  by  letter,  and 
the  lessor  makes  no  objection,  but  retains  the  key,  this 
will  be  sufficient  evidence  to  authorize  a  jury  in  finding 
a  termination  of  the  tenancy.1 

The  execution  of  a  new  lease,  with  the  tenant's  con- 
sent, to  another  person  who  enters  thereunder  and  pays 
rent,  will  amount  to  a  surrender.  There  may  be  a  parol 
surrender  of  a  written  lease  ;  there  may  be  a  surrender  by 
an  abandonment  of  the  premises  by  the  tenant  and  an 
entry  thereon  by  the  landlord." 

Delivery  of  key  and  part  payment  of  rent  after 
suit  brought,  nothing  being  said  about  the  settlement  of 
the  suit  or  the  discharge  of  the  action — held  :  that  this 
did  not  terminate  the  plaintiff's  right  of  action/ 

All  terms  of  leasing,  like  other  contracts,  expire  by 
their  own  limitation,  requiring  no  notice  from  either 
party  to  terminate.4 

But  where  the  action  is  brought  by  a  landlord  against 
a  tenant,  a  notice  is  usually  necessary  to  terminate  the 
tenancy.  Thus  an  action  cannot  be  maintained  against 
a  tenant  at  will  until  his  estate  has  been  duly  terminated 
by  notice  to  quit.0 

Where  the  parties  cannot  be  considered  as  landlord 
and  tenant  and  where  the  possession  was  obtained  illegally, 
no  notice  to  quit  or  demand  for  possession  is  neces- 
sary.'1 


1  Dills  v.  Stobie  et  al.,  81  111.  202. 

-  Williams  v.  Yanderbilt,  145  111.  238. 

3  Patterson  et  al.  v.  Graham,  140  111.  531. 

4  Fort  v.  McGrath,  7  111.  App.  302 

5  Seem  v.  McLees,  24  III.  192:  Prickett  v.  Ritter,  16  111.  96. 
6Kilburn  v.  Ritchie,  2  Cal.  145;  Thorn  v.  Reed.  1  Ark.  480. 


8    106.1  STATUTE    CONSTRUED.  127 

No  notice  to  quit  is  necessary  where  a  tenant  or  sub- 
tenant is  holding  over.1 

Where  a  party  makes  an  iHegal  and  forcible  entry 
upon  land  in  the  possession  of  another,  no  notice  or 
demand  for  possession  by  the  latter  before  bringing 
forcible  entry  and  detainer  is  necessary." 

When  there  is  a  tenancy  for  a  period  of  more  than  one 
year,  no  notice  to  the  tenant  is  required  in  order  to 
entitle  the  landlord  to  possession  upon  the  expiration  of 
the  first  term.3 

A  notice  to  quit  is  not  necessary  unless  the  relation  of 
landlord  and  tenant  exists,  and  where  the  tenant  repudi- 
ates the  tenancy  and  claims  title  in  fee  simple,  he  dis- 
penses with  the  necessity  of  notice  to  quit.' 

§  106.  Statute   of   1865   construed Statute    1865, 

107,  par.  2.  contemplates  two  notices,  one  to  quit  and 
the  other  of  the  landlord's  intention  to  declare  and  insist 
upon  a  forfeiture.  The  legislature  thereby  intended  to 
give  the  tenant  ten  days"  notice,  within  which  he  might 
pay  the  arrears  of  rent  and  thus  prevent  a  forfeiture; 
on  their  expiration  without  the  payment  of  the  arrears 
of  rent,  the  tenancy  terminates  and  the  landlord  may 
then  bring  suit  and  recover  possession. 

Under  the  statute  of  1865,  when  a  ten  days1  notice  to 
terminate,  on  account  of  a  failure  to  comply  with  the 
covenants  of  the  lease,  is  given  and  the  ten  days  expire 
after  the  notice  and  demand   without   the   payment  of 

1  Frank  v.  Taubman,  31  111.  App.  592. 
-  Stillman  v.  Palis,  134  111.  532. 
3  Walker  et  al.  v.  Ellis,  12  111.  470. 
4Herrell  et  al.  v.  Sizeland  et  al  ,  81  111.  457. 


128  STATUTE    CONSTRUED.  [§10(5. 

rent  in  arrears,  the   tenancy   is  terminated  and  the  land- 
lord may  sue  to  recover  possession. 

It  was  the  intention  of  the  legislature  to  give  the  ten- 
ant ten  days'  notice  within  which  he  might  pay  the 
arrears  of  rent  and  thus  prevent  a  forfeiture.1 

As  regards  the  time  when  the  demand  must  be  made, 
it  should  be  made  after  the  termination  of  the  tenancy. 
Our  Supreme  Court  says,  in  relation  to  the  demand  in 
writing  for  the  possession  of  the  premises,  under  the  act 
in  relation  to  forcible  entry  and  detainer:  "  We  are  of 
the  opinion  that  the  demand  should  be  made  after  the 
determination  of  the  time  for  which  such  lands  and 
tenements  were  let;  such  is  obviously  the  mean- 
ing of  the  statute.  Reason  and  analogy  sustain 
this  interpretation.  No  one  should  be  put  in  the 
wrong  by  a  Remand  which  another  had  no  right  to 
make,  of  a  thing  he  had  no  right  to  recover  or  possess. 
Could  a  bailee  be  charged  with  a  conversion  by  a  demand 
of  the  pledge  before  a  tender  of  his  advances,  or  the 
determination  of  his  special  title  or  right  of  possession?"  2 

Again,  where  no  notice  to  quit,  as  required  by  law. 
was  o-iven  it  was  held,  that  the  tenancy  continued  when 
suit  was  commenced.  It  was  held,  that,  where  a  person 
entered  into  possession  of  land,  with  the  permission  of 
the  owner,  as  a  mere  occupant  without  paying  rent,  and 
made  improvements,  and  afterward  sold  his  improve- 
ments to  another  person,  who  went  into  possession,  and 
the  owner  sold  the  land  and  his  grantee  brought  eject- 

1  Chadwick  v  Parker,  44  111.  320. 

2Prickett  v.  Ritter.  16  111.  98:  18  111.  75:  Doran  v.  Gillespie,  54  111. 
366. 


§106.]  STATUTE    CONSTRUED.  1  •_>!> 

ment,  the  person  purchasing  the  improvements  of  the 
mere  occupant  must  have  notice  to  quit,  and  this  after 
eighteen  years'  possession. 

And  again,  a  tenant  or  occupant  having  no  specific 
agreement  for  possession,  if  not  in  temporarily,  is  entitled 
to  notice  to  quit.  In  short,  where  a  tenant  enters  into 
possession,  with  the  consent  of  the  owner,  he  is  not  a 
wrong-doer,  and  can  not  be  a  wrong -doer  until  requested 
by  demand  to  surrender  possession,  and  refuses  so  to  do.1 

Under  the  former  statute  requiring  the  complaint  to 
show  that  the  necessary  demand  was  made,  it  was  held 
as  to  a  complaint  in  a  case,  that  it  wholly  failed  to  show 
that  the  notice  in  writing  therein  mentioned  was  served 
even  in  the  manner  stated,  after  the  determination  of  the 
time  for  which  the  premises  were  let ;  nor  did  it  show 
that  it  contained  any  such  demand  of  possession  as  that 
required  by  the  statute." 

This  seems  to  establish  the  rule  that  demand  for  posses- 
sion must  be  made  after  the  termination  or  expiration  of 
the  lease. 

And  where  possession  of  lands  has  been  acquired  by 
the  assent  of  the  owner,  and  has  been  long  continued, 
the  holding  of  possession  may  not  be  wrongful,  until 
demand  therefor  has  been  made.3 

And  the  purchaser  of  real  estate  at  sheriff's  sale  can 
not  maintain  an  action  of  forcible  detainer  after  receiving 
a  deed,  without   first    making  a  demand   for  possession.' 

1  Chicago,  Burlington  &  Quincy  R.  R.  v.  The  President,  etc.,  of 
Knox  College,  34  111.  202. 

2  Doran  v.  Gillespie,  54  111.  366. 

3  Murphy  v.  Williamson,  85  111.  149. 
J  Dickason  v   Dawson,  85  111   ."i:;. 

0 


130  HOW    DEMAND    SHALL    BE    MADE.  [§107. 

As  regards  the  time  that  demand  must  be  made,  before 
the  commencement  of  suit,  the  statute  has  been  construed 
as  follows :  The  statute  does  not  require  the  demand  to 
be  made  a  reasonable  time,  or  any  definite  time,  before 
the  commencement  of  the  suit.1 

§  107.  How  demand  shall  be  made — As  to  how 
demand  shall  be  made,  the  statute  (chap.  80,  sec.  10) 
says:  ''  Any  demand  may  be  made  or  notice  served  by 
delivering1  a  written  or  printed,  or  partly  written  and 
printed,  copy  thereof  to  the  tenant,  or  by  leaving  the 
same  with  some  person  above  the  age  of  twelve  years, 
residing  on  or  in  possession  of  said  premises ;  and  in  case 
no  one  is  in  actual  possession  of  said  premises,  then  by 
posting  the  same  on  the  premises.  And  the  return  of  an 
officer  authorized  to  serve  process,  or  the  affidavit  of 
another  person  serving  the  same,  is  prima  facie  evidence 
of  service.'' 

Again,  a  lease  may  be  terminated  by  acts  of  the 
parties,  without  either  a  written  or  verbal  agreement 
to  that  effect.  In  case  the  owner  of  lands  and  tene- 
ments exercises  acts  of  ownership,  inconsistent  with 
the  existence  of  the  tenancy,  as  in  case  he  should 
make  a  lease  of  the  land  to  another,  to  commence 
immediately,  or  if  he  enters  upon  the  land  and  cuts 
timber,  or  does  any  other  act  showing  his  determina- 
tion to  consider  the  tenancy  at  an  end,  he  can  not  after- 
ward be  allowed  to  hold  the  tenancy  in  existence  as 
against  the  tenant.  And.  on  the  other  hand,  the  tenant 
may  also,  by  his  acts,  terminate  the  tenancy  so  that  he 
is  estopped  from  claiming  the  relation  of  landlord  and 

1  Huftalin  v.  Misner,  70  111.  205. 


§  108.  |  YEARLY    TENANCY NOTICE.  131 

tenant  in  existence.  In  case  a  tenant  should  desert  the 
premises,  attorn  to  another  as  landlord,  claim  to  hold 
possession  by  virtue  of  a  title  hostile  to  that  of  the  land- 
lord, and  do  any  other  act  inconsistent  with  the  ten- 
ancy, he  will  be  considered,  in  all  proceedings  by  the 
landlord,  to  have  thereby  terminated  the  tenancy  exist- 
ing between  them.1 

§  108.  Yearly  tenancy — Notice. — But  where  the  ten- 
ant holds  from  year  to  year,  and  where  he  holds  to  the 
end  of  a  term  of  years,  and  continues  in  possession  by 
consent  of  the  landlord,  the  law  will  imply,  in  the 
absence  of  any  express  agreement,  that  he  holds  the 
premises  upon  the  terms  of  the  former  lease,  and  the 
parties  impliedly  renew  the  previous  agreement  for 
another  year;  and  it  is  necessary,  if  either  landlord  or 
tenant  desires  to  terminate  the  tenancy,  to  notify  the 
other  party  to  the  contract  of  his  intention  to  put  an 
end  to  the  tenancy.  The  notice  to  terminate  a  yearly 
tenancy  should  be  given  as  hereinbefore  (page  120)  stated, 
and  may  be  given  to  quit  on  a  particular  day  named  in 
the  notice  or  it  may  be  oiven  in  general  terms  at  the  end 
of  the  current  year  of  the  tenancy,  which  will  expire 
next  after  the  end  of  sixty  days  from  the  service  of  the 
notice.  In  case  the  written  lease  is  not  accessible,  and 
the  landlord  is  not  certain  on  what  day  the  lease  termi- 
nates, then  the  general  terms  should  invariably  be  used, 
and  if  the  exact  day  is  known,  the  use  of  the  general 
terms  obviates  the  misapprehension  of  the  exact  day  on 
the  part  of  the  tenant. 

1  Dills  v.  Stobie,  81  111.  202:  Stewart  v.  Munford,  91  111.  58;  Taylor's 
Landlord  and  Tenant,  sec.  466. 


332  YEARLY    TENANCY NOTICE.  [§108. 

But  in  case  a  particular  day  is  named,  and  no  general 
terms,  as  to  the  end  of  the  tenancy,  are  used  in  the 
notice,  the  day  mentioned  must  correspond  with  the  day 
of  the  commencement,  and  not  the  day  of  the  ending  of 
the  tenancy  ;  for  the  tenant  is  not  obliged  to  quit  so  long- 
as  his  right  continues,  and  his  right  is  not  determined 
until  the  year  is  fully  ended.  The  day  named  must  be 
the  anniversary  day  of  the  commencement  of  the  lease, 
so  that  a  lease  running  from  the  1st  day  of  May,  1885, 
"for,  during  and  until"  the  30th  clay  of  April,  1S86, 
can  be  ended  by  a  notice  to  quit  and  give  up  possession 
on  the  1st  day  of  May.  1886. 

A  lease  for  a  definite  term  of  }rears  expires  by  its  own 
limitation  at  the  last  moment  of  the  anniversary  of  the 
day  from  which  the  tenant  was  to  hold,  in  the  last  year 
of  the  tenancy.1 

And  if  the  tenancy  is  for  one  year,  it  cannot  be  termi- 
nated during  the  year,  but  only  at  the  end  of  the  year,  as 
neither  party  has  a  right  to  put  an  end  to  the  tenancy 
before  the  expiration  of  the  year ;  and  if  the  occupation 
goes  beyond  that  period,  by  the  express  or  implied  con- 
sent of  the  parties,  and  a  new  year  is  entered  upon,  the 
right  to  enjoy  the  whole  year  is  implied  by  law.  But  if 
the  holding  over  by  the  tenant  is  merely  temporary  or 
unavoidable,  such  as  dangerous  sickness  in  the  tenant's 
family,  and  no  acts  of  the  parties  indicate  an  intention  to 
continue  the  lease,  the  implication  of  a  continuance  of  the 
tenancy  will  not  be  raised,  so  that  the  holding  over  by 
the  tenant  must  be  continued  for  such  a  length  of  time 
after  the  expiration  of  the   term   as  will  reasonably  war- 

1  Ackland  v.  Sutlev.  9  Ad.  &  El.  879;  Higgins  v.  Halligan.  46  111.  173. 


§109.]  WHEN     DEMAUD    MADE.  L33 

rant  the  implication  of  an  assent  on  the  part  of  the  land- 
lord to  such  continuance,  before  the  landlord  can  be 
bound  thereby,  and  to  make  it  necessary  to  give  the  ten- 
ant a  notice  to  quit  before  commencing  proceedings  in 
forcible  entry  and  detainer.1 

Where  a  tenant  for  a  year  or  years  holds  over  after 
the  expiration  of  his  lease,  without  having  made  any  new 
arrangement  with  his  landlord  under  which  such  holding 
over  takes  place,  the  landlord,  at  his  election,  may  treat 
the  tenant  as  a  trespasser,  or  as  a  tenant  for  another 
year,  upon  the  same  terms  as  in  the  original  lease,  and  this 
though  the  tenant  has  no  intention  of  holding  over  for  a 
year,  or  of  paying  the  same  rent,  the  law  fixing  the 
liability  of  the  tenant  for  holding  over,  independent  of 
his  intention ;  and  the  legal  presumption  of  a  renewal 
from  the  holding  over  can  not  be  rebutted  by  proof  of  a 
contrary  intention  on  the  part  of  the  tenant  alone — such 
a  holding  over  will  bind  the  tenant  if  the  landlord  so 
elects,  unless  such  holding  over  is  excused  in  law  by 
some  fact  showing-  that  the  holding  was  unavoidable  and 
giving  up  the  premises  impossible.  The  legal  presump- 
tion of  a  renewal  of  the  tenancy,  arising  from  a  holding 
over,  may  always  be  rebutted  by  proof  of  a  different 
intention  on  the  part  of  both  landlord  and  tenant,  but 
this  intention  must    be   participated  in  by  both  of  them. 

§  109.  When  demand  made. — The  demand  should  be 
made  after  the  termination  of  the  tenancy,  in  case  of 
landlord  and  tenant,  and  must  be  served  by  delivering  a 
copy  thereof  to  the  tenant,  or  by  leaving  such  copy  with 
some  person  above  the  age   of  twelve  years,  residing  on 

1  Taylor  Landlord  &  Ten.  sec.  4<i?  et  seq. 


134  WHEN    LEASE    EXPIRES.  [§110. 

or  being  in  charge  of  the  premises;  or  in  case  no  one  is 
in  actual  possession  of  the  premises,  then  by  posting  the 
same  on  the  premises.  When  such  demand  is  made  by 
an  officer  authorized  to  serve  process,  his  return  shall  be 
prima  facie  evidence  of  the  facts  therein  stated ;  and  if 
such  demand  is  made  by  any  person  not  an  officer,  the 
return  may  be  sworn  to  by  the  person  making  the 
same,  and  shall  then  be  prima  facie  evidence  of  the  facts 
therein  stated.  Formerly  an  individual  could  not  make 
a  return  of  service,  but  it  was  necessary  to  call  him  on 
the  trial  to  prove  the  service,1  as  stated  in  sec.  !»!>. 

Ae:am,  where  it  was  necessary  to  prove  the  termina- 
tion  of  the  tenancy,  it  is  competent  on  the  trial  to  admit 
the  notice  and  demambmade  by  the  landlord  as  evidence 
of  the  termination  of  the  tenancy,  both  as  against  the 
tenant  or  a  sub-tenant  to  whom  the  tenant  may  have 
sub-let.  This  was  so  held  on  the  trial  of  an  action  of 
forcible  entry  and  detainer  to  recover  possession  by  the 
landlord  following  the  termination  of  a  tenancy  at  will.2 

§  110.  When  lease  expires. — Where  a  lease  fixes  the 
time  for  the  expiration  of  the  term  and  provided  that  the 
tenant  shall  restore  possession  of  the  demised  premises, 
the  duty  of  the  tenant  to  yield  up  the  possession  will  not 
be  dependent  upon  a  demand  for  possession  or  upon  any 
proceeding  to  be  taken  or   thing  done   by  the  landlord." 

1  Ball  v.  Peck,  43  111.  482:  Yenuum  v.  Vennum.  56  111.  430; 
-  Reynolds  v.  Gage,  91  111.  125. 
3  Poppers  v.  Meagher,  14s  111.  192. 


<  HI.]  JURISDICTION    ORIGINALLY.  1  35 


CHAPTER   IX. 

JURISDICTION. 

Section  111.  Jurisdiction  originally. 

112.  What  necessary  to  give  jurisdiction. 

113.  The  venue. 

114.  In  justice  courts. 

115.  In  circuit  courts. 

116.  In  various  states. 

§  111.  Jurisdiction  originally. — Originally,  in  the 
State  of  Illinois,  justices  of  the  peace  had  original  and 
exclusive  jurisdiction  in  cases  of  forcible  entry  and 
detainer;  and  so  we  find  it  decided  in  Ginn  el  al.  v. 
Rogers,  1  Gilm.  131,  that  the  county  court  has  not 
original  jurisdiction  in  these  cases,  nor  has  the  circuit 
court ;  and  that  the  circuit  court  could  obtain  jurisdiction 
only  by  appeal  from  the  judgment  of  a  justice  of  the 
peace,  in  whom  it  was  exclusively  vested. 

But  it  is  otherwise  now,  as  the  statute  on  the  question 
of  jurisdiction  provides  that,  "on  complaint  in  writing 
by  the  party  or  parties  entitled  to  the  possession  of  such 
premises,  being  filed  in  any  court  of  record,  or  with  any 
justice  of  the  peace,  summons  shall  issue,"  etc. — so  that 
neither  courts 'of  record  nor  justice  courts  have  exclusive 
jurisdiction,  but  both  have  original  jurisdiction  in  such 
cases,  and  an  appeal  may  be  taken  from  either  to  the 
higher  courts. 

Consent  of  parties  can  not  confer  jurisdiction  upon  a 
court  in  which  the  law  has  not  vested  it.' 

1  (Jinn  et  al.  v.  Rogers.  4  Gilm.  131. 


136  NECESSARY    TO    GIVE    JURISDICTION.  [   §  112. 

When  the  relation  of  landlord  and  tenant  is  set  up  to 
give  the  court  jurisdiction,  the  petition  should  show  that 
the  defendants  entered  into  the  premises  under  a  lease, 
or  by  the  assent  of  the  plaintiff,  or  some  circumstance 
from  which  it  can  be  presumed  that  the  relation  of  land- 
lord and  tenant  exists.1 

Prior. to  the  act  of  1861,  there  must  have  been  either 
a  forcible  entry,  or  the  relation  of  landlord  and  tenant 
must  have  existed,  before  a  justice  could  take  jurisdiction 
in  this  action.2 

.^  112.  What   necessary   to    give    jurisdiction. — In 

order  to  give  a  court  jurisdiction  in  forcible  entry  and 
detainer  between  vendor  and  vendee,  under  the  statute 
all  of  these  three  elements  must  be  shown — 

First — The  relation  of  vendor  and  vendee  must  exist. 

Second — The  vendee  must  have  obtained  possession  of 
the  land  under  the  contract. 

Third — The  vendee  must  have  failed  or  refused  to  com- 
ply with  his  contract  of  purchase  before  obtaining  a  deed 
of  conveyance. 

If  either  of  these  elements  is  wanting,  the  court  has 
no  jurisdiction.3 

The  title  is  not  involved  in  an  action  of  forcible  entry  and 
detainer,  a  "writ  of  error  does  not  lie  from  the  Supreme 
Court  to  the  trial  court  to  review  the  proceedings — such 
writ  should  emanate  from  the  appellate  court.4 

If  the  description  of  the   premises  in  the  complaint  is 

'Beel  v.  Pierce,  11  111.  92. 

-Steiner  v.  Priddy,  28  111.  179;  Jackson  v.  Warren,  32  111.  831. 

a  Haskins  v.  Haskins,  67  111.  446. 

4Kepley  v.  Luke,  106  111.  395. 


§   113.]  THE    VENUE.  137 

so  defective  that  the  Land  can  not  be  certainly  located, 
the  court  does  not  obtain  jurisdiction  ;  nor  would  a  judg- 
ment be  effective,  if  rendered  on  a  complaint  wherein 
the  premises  are  so  defectively  described.1 

Thus,  a  description  of  "  about  fifteen  acres,  a  part  of 
a  tract  of  one  hundred  and  sixty  acres,"  not  showing 
which  part  of  the  one  hundred  and  sixty  acres,  is  too 
uncertain." 

Under  the  law  requiring  the  complaint  to  be  in  writing 
under  oath,  the  same  could  not  be  made  verbally  under 
oath  and  the  justice  thereupon  issue  summons. 

The  statute  of  forcible  entry  and  detainer  confers  new 
rights  and  prescribes  a  remedy  unknown  to  the  common 
law  and  must  be  strictly  pursued.3 

In  forcible  entry  and  detainer  cases,  the  statute  con- 
ferring jurisdiction  must  be  strictly  pursued  in  the  method 
of  procedure  prescribed  by  the  statute.4 

§  113.  The  venue. — Generally,  the  action  may  be 
brought  in  any  township  in  the  county  wherein  the  prem- 
ises in  question  are  situated.'' 

A  process  in  forcible  entry  and  detainer  may  issue  to 
and  be  served  in.  the  county  where  the  defendant  resides, 
though  different  from  that  where  the  land  is  located. 

However,  in  some  States  the  venue  seems  to  be  gov- 
erned by  the  residence  of   the  parties  and  not    by  the 

1  Schaumtoeffel  v.  Behn,  77  111.  569. 
-Beel  v.  Pierce,  11  111.  92. 

3  Hums  et  al.  v.  Nash.  23  111.  App.  552. 

4  Wilber  v.  French,  27  111.  App.  76. 

Murphy  v.  Lucas,  2  O.  255;  Billings  v.  Chapin,  2  III.  App.  555; 
Boxley  v.  Collins,  4  Blackf.  (Ind.)  320. 


138  TIIK    VENUE.  [§113. 

locality  of  the  land,  and  the  action  is  brought  in  the 
county  and  town  where  the  parties  reside.1 

The  jurisdiction  in  actions  of  forcible  entry  and 
detainer  has  been  conferred  by  the  statute  upon  the 
justices  of  the  peace  in  the  State  of  Illinois." 

In  forcible  detainer  before  a  justice,  the  complaint  is 
jurisdictional,  and  if  the  justice  has  no  jurisdiction  of  the 
case,  the  Court  of  Appeals  has  none.3 

In  order  to  give  a  justice  of  the  peace  jurisdiction  of 
an  action  of  forcible  entry  and  detainer,  the  complaint 
must  contain  sufficient  allegations  to  bring  it  within  one 
of  the  several  cases  anticipated  by  the  statute.4 

The  filing  of  an  affidavit  preliminary  to  a  summons  in 
an  action  of  forcible  entry  and  detainer  is  essential  to 
give  the  justice  jurisdiction  of  the  subject  matter.  The 
complaint  cannot  be  made  verbally,  nor  can  a  justice 
acquire  jurisdiction  by  allowing  an  affidavit  to  be  filed  on 
the  day  of  the  trial.  The  affidavit  is  the  jurisdictional 
foundation  for  the  entire  proceeding  and  must  precede 
the  summons.0 

In  actions  of  forcible  detainer,  a  demand  for  posses- 
sion is  required  to  be  made  upon  the.  tenant  before  the 
commencement  of  the  suit.  A  complaint  in  writing 
must  be  made  before  the  summons  issues.  Service  of 
summons  must  be  made  in  a  manner  different  from  any 
other  actions  at  law,  and  no  writ  of  restitution  shall  be 
issued  until  the  expiration  of  five  days  after  judgment. 

1  Billings  v.  Chapin,  2  111.  App.  53.j. 
'  -  Ginn  etal.  v.  Rogers.  9  111.  131:  Haskinset  al.  v.  Haskins.  67  111.  446. 

Abbott  v.  Kruse,  37  111.  App.  549. 
■*Ballance  v.  Curtenius  et  al,  3  Gilinan  (111.)  449. 
5  Stolberg  v.  Ohnmacht,  oO  111.  442. 


§§114,    115.]  IN    JUSTICE    COURTS.  L39 

These  provisions  cannot  be  changed   by  the  contract  of 
the  parties.1 

|  114.  In  justice  courts. — A  justice  has  jurisdiction 
of  the  action  of  forcible  entry  and  detainer,  by  a  landlord 
against  his  tenant  without  regard  to  the  amount  of  rent 
reserved  in  the  lease.  The  right  to  possession  alone  is 
in  question." 

The  limitation  of  the  jurisdiction  of  justices  of  the 
peace  in  civil  cases  to  actions  where  the  amount  in  dis- 
pute does  not  exceed  $200,  does  not  apply  to  forcible 
entry  and  detainer.3  The  County  and  Circuit  Court  have 
no  original  jurisdiction  in  forcible  entry  and  detainer 
cases.  They  can  only  obtain  jurisdiction  by  way  of  an 
appeal  from  a  justice  of  the  peace.1  This  has  since  been 
changed  by  statute.     (See  §  111,  ante.) 

Unless,  in  such  case,  it  is  made  to  appear,  that  a  com- 
plaint was  filed  with  the  justice  and  that  that  complaint 
was  brought  into  the  court,  appealed  to,  and  if  lost,  that 
its  loss  lias  been  supplied,  the  case  must  be  dismissed.  ' 

.^'  115.  In  circuit  courts — The  circuit  and  superior 
courts,  under  the  statutes  of  forcible  entry  and  detainer, 
are  clothed  with  special  statutory  and  extraordinary 
power  and  stand  upon  the  same  ground  and  are  governed 
bv  the  same  rules  as  courts  of  limited  and  inferior  juris- 
diction.     Nothing,  in  such  case,  is  within  the  jurisdiction 

1  French  v.  Wilier,  126  111.  611. 
'-'  Hannigan  v.  Mossier  et  al.,  44  111.  App.  117. 

;  Hard  v.  Moon,  6  Cal.  161;   Silvey  v.  Simmer,  61  Mo.  253;  Weston 
v.  Haley,  27  Vt.  283;  Divell  v.  Brinkerhoff,  22  Mich.  371. 
4  Ginn  et  al.  v.  Rogers,  4  Oilman  (111.),  131. 
Abbott  v.  Kruse,  37  111.  App.  549. 


140  IN    CIBCCTIT    COURTS.  [§115. 

of  the  court  but  what  expressly  so  appears  upon  the  face 
of  the  proceedings.1 

But  justices  of  the  peace  have  no  jurisdiction  where 
the  title  to  real  property  comes  into  question,  and  where 
a  justice,  exercises  his  jurisdiction  in  this  regard,  he 
becomes  a  trespasser.2 

Where  a  complaint  in  writing  in  a  forcible  detainer 
suit  is  transmitted,  with  the  papers  <m  appeal  from  a  jus- 
tice of  the  peace  and  the  justice's  transcript  shows  that 
a  complaint  was  filed,  this  will  be  sufficient  to  give  the 
court  jurisdiction,  there  being  no  law  requiring  a  justice 
of  the  peace  to  mark  the  papers  filed  in  a  case  before  him.' 

The  court  says,  that  in  this  case  the  defendant  in  the 
court  below  was  in  possession  of  the  land;  he  asserted 
ownership  in  fee  by  certain  conveyances,  which  are  in 
evidence.  Manifestly,  then,  if  the  deeds  held  by  the 
appellant  are  good, — and  that  is  the  sole  question, — the 
title  in  fee  has  been  transferred  from  the  appellee  to  the 
appellant;  we  think,  therefore,  a  freehold  is  involved 
and  that  we  have  no  jurisdiction.  Ordinarily,  this  form. 
of  action  does  not  involve  the  title,  but  in  such  a  case  as 
this,  the  rights  of  the  parties  cannot  be  determined  with- 
out testifying  which  of  them  is  the  owner  of  the  fee, 
and  where  such  is  the  case,  we  think  the  form  of  action 
is  immaterial. ' 

It  seems  that  in  Georgia  a  justice  of  the  peace  of  one 
county  may  administer  the  oath  and  issue  the  warrant 

1  Burns  v.  Nash,  23  111.  App.  552. 
-  Haskins  et  al.  v.  Haskins,  67  111.  446. 
-Reynolds  v.  Gage,  91  111.  125. 
J  Kepley  v.  Luke,  10  111.  App.  403. 


8    1  1)1.  |  IN     VARIOUS    STATES.  141 

necessary  to  dispossess  a  tenant  holding  over  in  another 
county.1 

jj  116.  In  various  states. — In  the  States  of  Alabama, 
California,  Kentucky  and  other  States,  justices  of  the 
peace  alone  have  original  jurisdiction  in  these  cases.2 

In  Illinois,  Indiana,  Nevada,  Tennessee,  West  Virginia 
and  some  other  States,  the  higher  courts  have  concurrent 
jurisdiction  with  the  justices  of  the  peace  in  forcible 
entry  and  detainer  cases.3 

There  must  be  either  a  forcible  entry  or  the  relation  of 
landlord  and  tenant  must  exist,  before  a  justice  can  take 
jurisdiction  in  an  action  of  forcible  entry  and  detainer  or 
of  forcible  detainer.1 

1  Du  Bignon  v.  Tufts,  66  Ga.  59. 

-  Dunham  v.  Carter,  2  Stew.  (Ala.)  496;  Townsend  v. Brooks,  5  Cal. 
52;  Johnson  v.  Irwine,  3  Metcalf  (Ky.),  251;  Ginn  et  al.  v.  Rogers.  4 
Gilm.  (III.)  131. 

3  Witz  v.  Haynes,  43  Ind.  470;  Hoops  v.  Meyer,  1  Nev.  433;  White 
v.  Suttle,  1  Swan.  (Tenn.)  169;  Gorman  v.  Steed,  1  W.  Va.  1. 

4  Steiner  v.  Priddy,  28  111.  179. 


142  COMPLATNT    HERETOFORE,   ETC.  [  §  1 1  T. 


CHAPTER  X. 

THE  COMPLAINT. 

Section  117.  Complaint  heretofore  and  at  this  time. 

118.  Summons. 

119.  What  the  complaint  should  contain. 

120.  What  description  of  premises  required. 

§  117.  Complaint  heretofore  and  at  this  time. — The 

complaint  is  the  foundation  of  the  action,  and  in  the  his- 
tory of  the  action,  in  the  State  of  Illinois,  has  been 
jurisdictional,  and  must  state  a  good  cause  of  action. 

So  that,  heretofore,  in  this  State  it  has  been  a  serious 
matter  to  properly  draw  a  complaint  in  forcible  entry 
and  detainer,  and  there  are  many  decisions  by  the 
Supreme  Court  on  the  sufficiency  of  the  complaint. 

Thus,  a  complaint  in  writing  that  the  complainant  ,l  is 
entitled  to  the  possession  of  a  house  and   lot  in  the  town 

of .  whereon  one  Wells  lives,    and  that  said  Wells 

refuses  to  give  possession  of  said  house  and  lot,  though 
he  has  been  notified  to  do  so  in  writing,"  was  held 
insufficient,  the  court  saying,  the  plaintiff  ought  to  have 
stated  in  his  complaint,  that  the  defendant  willfully  and 
without  force  held  over  the  premises  after  the  term  had 
expired  for  which  they  were  leased  to  him,  or,  in  other 
words,  the  relation  of  landlord  and  tenant  should  be 
shown  to  exist,  and  the  holding  over  after  a  demand 
made  in  writing  by  the  landlord.  This  was  under  the 
statute  of  1819. ' 

1  Wells  v.  Hogan,  Breese,  337;  Ballance  v.  Curtenius,  3  Gilni.  449. 


§   117.]  COMPLAINT    HERETOFORE,    ETC.  143 

But  these  cases  must  be,  in  the  future,  in  a  measure 
obsolete  in  this  State,  since  the  enactment  of  the  late 
statute,  which  provides  :     What  a  complaint  shall  state.1 

A  complaint  which  shows  a  case  within  any  of  the 
provisions  of  the  statute  is  sufficient  to  give  the  court 
jurisdiction." 

A  general  description,  if  sufficiently  certain,  is  good.3 

If  objection  is  to  be  taken  to  the  complaint,  it  must  be 
done  in  the  court  that  first  tries  the  case,  and  it  will  be 
too  late  to  make  objection  to  the  complaint  on  appeal,  if 
no  objection  was  urged  in  the  court  below  by  motion  to 
(piash.4 

If  the  complaint  is  defective,  it  should  be  amended,  on 
motion  for  leave  to  amend  in  the  lower  court.  Amend- 
ments may  be  allowed  in  the  discretion  of  the  court  at 
any  time,  even  after  a  verdict  by  a  jury.  Thus,  where 
a  case  was  reversed  by  the  Supreme  Court,  because  it 
was  not  shown  that  the  defendant  was  in  possession  of 
ail  the  land  described  in  the  complaint,  the  cause  went 
back  on  remandment  to  the  circuit  court,  where  the 
plaintiff  was  permitted  to  amend  his  complaint  so  as  to 
include  only  part  of  the  land  therein  described.  Held, 
that  such  leave  was  properly  granted.5 

The  complaint  should  be  filed  in  court,  and  any  motion 
made  to  quash  complaint  should  be  filed.  This  is  true  as 
a  matter  of  protection,  whether  required   by  law  or  not. 

1  Rev.  Stat.,  ch.  57,  sec.  5. 
-  Haskins  et  al.  v.  Haskins,  67  111.  44(3. 
:;  Atkinson  v.  Lester,  1  Scam.  407. 

4Leary  v.  Pattison,  66  111.  203;  Brown  v.  Keller,  32  111.  151;  Jack- 
son v.  Warren,  32  111.  331. 

•  Thompson  v.  Sornberger.  78  111.  353;  Spurck  v.  Forsyth,  40  111  43s. 


144  THE    SIMMONS.  [§118. 

It  has  been  held,  that  there  is  no  law  requiring  justices 
of  the  peace  to  mark  the  papers  in  cases  in  their  court 
filed.' 

§  IIS.  The  summons; — Sec.  5.  On  complaint  in 
writing'  by  the  party  or  parties  entitled  to  the  possession 
of  such  premises  being  filed  in  any  court  of  record,  or 
with  any  justice  of  the  peace  in  the  county  where  such 
premises  are  situated,  stating  that  such  party  is  entitled 
to  the  possession  of  such  premises  (describing  the  same 
with  reasonable  certainty )  and  that  the  defendant  (naming 
him)  unlawfully  withholds  the  possession  thereof  from 
him  or  them,  the  clerk  of  such  court  or  such  justice  of 
the  peace  shall  issue  a  summons  directed  to  the  sheriff  or 
any  constable  of  his  county  to  execute ;  which  summons, 
when  issued  by  a  justice  of  the  peace,  may  be  substan- 
tially in  the  following-  form  : 


ss. 


STATE    OF    ILLINOIS,  j 
County  of  Cook.  \ 

The  People  of  the  State  of  Illinois,  to  the  Sheriff  or 
any  Constable  of  said  County — Greeting: 

You  are  hereby  commanded  to  summon to  appear 

before ,  at ,  on  the day  of ,  A.  D ,' 

at o'clock  ...  M.,  to  answer  the  complaint  of 

wherefore  he  unlawfully  withholds  from  him  the  posses- 
sion of  certain  premises  in  said  county  (describing  the 
premises),  and  hereof  make  due  return,  as  the  law  directs. 

Given  under  my  hand  this day  of .  A.  D.  18.  _. 

In  a  forcible  entry  and  detainer  suit,  the  complaint  is 
a  mere  pleading,  not  required  to  be  sworn  to  and  not 

1  Reynolds  v.  Gage.  91  111.  125. 


§119.]  WHAT    COMPLAINT    SHOULD    CONTAIN.  14."> 

required  to  be  made  or  signed  by  the  plaintiff  in  person; 
it  may  be  made  by  an  agent  or  attorney.1 

The  complaint  in  forcible  entry  and  detainer  must 
show  the  relation  of  landlord  and  tenant  to  have  existed  ; 
that  the  time  for  which  the  premises  were  let  has  expired 
and  that  the  tenant  persists  in  holding  the  premises  after 
demand  made  in  writing  for  the  possession.2 

Mo  precise  form  of  complaint  is  essential.  It  is  suffi- 
cient, if  the  complaint  shows  the  relation  of  landlord  and 
tenant  to  have  existed ;  that  the  rent  term  has  expired 
and  that  the  tenant  is  holding  over  after  demand*  made 
in  writing  for  possession  thereof.3 

§  119.    What  the  complaint   should  contain.  —  In 

Illinois  the  complaint  must  show,  that  the  plaintiff  had 
the  right  of  possession  at  the  time  of  the  commencement 
of  the  action,  or  that  he  was  in  the  possession,  actual  or 
constructive,  at  that  time,  it  not  being  necessary  for 
him  to  allege  the  estate  held  by  him ;  but  a  complaint 
for  forcible  entry  and  detainer  can  not  be  maintained, 
which  merely  alleges  that  the  plaintiff  was  entitled  to 
possession  and  that  the  defendant  entered  forcibly  and 
kept  him  out,  without  averring  that  the  plaintiff  had 
actual  or  constructive  possession,  or  that  the  relation  of 
landlord  and  tenant  existed.4 

The  complaint  in  forcible  entry  and  detainer  should 
describe  the  premises  properly,  instead  of  following  an 
erroneous  description  in   the  lease.      Upon  trial  it  can  be 

1  Patterson  et  al.  v.  Graham.  140  111.  531. 

2Beel  v.  Pierce  et  al.,  11  111.  92;  Cairo,  etc.,  R.  R.  Co.  v.  Wiggins 
Ferry  Co..  82  111.  230;  Dunne  v.  Trustees  of  Schools,  39  111.  578. 
3 Smith  v.  Killeck  et  ux.,  5  Gillman  (111.),  293. 
4  Whitaker  et  al.  v.  Gautier,  3  Gilm.  (111.)  443. 
in 


146  DESCRIPTION    OF    PBEMI8ES    REQUIRED.  [§  120. 

shown  that  the  defendant  entered  into  the  premises  under 
the  lease  and  paid  rent  therefor. ' 

It  is  not  sufficient  to  allege,  that  A.  entered  forcibly 
upon  the  premises  of  which  the  plaintiff  was  in  posses- 
sion and  that  A.  afterwards  transferred  the  possession  to 
the  defendants,  who  have  since  forcibly  kept  possession?" 

If  the  complaint  shows  the  relation  of  landlord  and 
tenant  to  have  existed,  that  the  time  for  which  the 
premises  were  let  had  expired,  and  that  the  tenant  per- 
sists in  holding  the  premises  after  demand  made,  in  writ- 
ing, for  the  possession,  it  is  sufficient,  without  stating 
that  the  plaintiff  was  ever  in  actual  possession  of  the 
premises.3 

§  120.  What  description  of  the  premises  required. 

—The  description  in  the  complaint  must  be  sufficiently 
accurate  to  readily  identify  and  locate  the  premises  for 
the  possession  of  which  the  action  is  brought.4 

The  description  of  land  in  a  complaint  in  an  action 
of  forcible  entry  and  detainer,  from  which  the  land  is 
susceptible  of  being  easily  and  definitely  located  by  a 
surveyor,  is  sufficient. 

Any  description  by  which  the  premises  can  be  readily 
identified  and  located  is  all  that  is  required  in  a  com- 
plaint in  an  action  of  forcible  entry  and  detainer.0 

If  an  officer  executing  a  writ  of  restitution  could  iden- 

1  Gerlach  v.  Walsh,  41  111.  App   83. 

-  Ballance  v.  Curtenius,  3  Gilm.  (111.)  449. 

The  Cairo  &  St.  L.  R.  R.  Co.  v.  Wiggins  Ferry  Co.,  82  111.  230. 
4  Stillman  v.  Palis,  134  111.  532. 

•  Dunne  v.  Trustees  of  Schools,  39  111.  578. 

'•  The  Cairo  &  St.  L.  R.  R.  Co.  v.  Wiggins  Ferry  Co.,  82  111.  230. 


§    120.]  DESCRIPTION    OF    PREMISES     REQUIRED.  1  4  < 

tify  the  premises  as  described  in  the  writ,  the  description 
is  sufficient  to  sustain  a  complaint.1 

But  a  description  which  falls  short  of  the  above  rule 
is  insufficient;  for  instance,  a  description  "of  about 
fifteen  acres,  a  part  of  a  tract  of  one  hundred  and  sixty 
acres/"  not  showing  what  part  of  the  one  hundred  and 
sixty  acres,  is  insufficient.2 

A  complaint,  reading:  "that  the  defendant,  on,  etc., 
came  into  the  possession  of  the  following  described 
premises  under  a  contract  of  purchase  from  affiant,  to- 
wit :  apart  of  the  southwest  quarter  of  the  southeast 
quarter  in  section  one,  etc.,  and  that  the  said  defendant 
has  failed  to  comply  with  his  said  contract  of  purchase 
and  still  holds  possession  wilfully  and  without  force,"  etc. , 
held,  that  the  complaint  was  not  sufficient  to  confer  jur- 
isdiction, and  also  that  the  description  of  the  land  as  a 
part  of  a  tract  was  void  for  uncertainty,  and  because  it 
does  not  say  that  he  failed  to  comply  with  his  contract 
before  obtaining  a  deed  of  conveyance.3 

Three  and  one  half  acres  off  a  specified  tract  is  not  a 
good  description  of  land  in  a  complaint.4 

A  description  of  premises  sought  to  be  recovered  in  an 
action  of  forcible  entry  and  detainer,  as  "apart  of  the 
north  half  of  the  northeast  quarter  of  section  15,"  etc., 
"with  the  house  situated  thereon/"  is  void  for  uncer- 
tainty and  confers  no  jurisdiction  on  the  magistrate  to 
hear  and  determine  the  case.  The  defect  can  not  be 
supplied  by  parol  evidence  given  on  the  trial." 

1  Maloney  v.  Shattuck,  15  111.  App.  44. 
-'"Haskins  et  al.  v.  Haskius,  67  111.  446. 
3Beel  v.  Pierce  et  al  ,  11  111.  92. 
4  Klingensmith  v.  Faulkner,  84  Ind.  331. 
'  Schaumtoeffel  v.  Belm,  77  111.  567. 


148  DESCRIPTION    OF    PREMISES    REQUIRED.  [§120. 

"The  premises  enclosed  by  us,  situated  in  the  county 
of  Cook  and  State  of  Illinois,  being  the  same  on  which 
you  now  reside,  containing  about  one  hundred  acres, 
more  or  less,  and  commonly  called  North  Grove,"  is 
sufficient  description.1 

1  Atkinson  v.  Lester  et  al. ,  2  111.  407. 


121.]  STATUTORY     PROVISIONS.  L49 


CHAPTER   XL 

PLEADINGS  —  TRIAL  —  PROCEEDINGS. 

Section  121.  Statutory  provisions. 

122.  Pleadings. 

123.  Amendments. 

124.  Plea  of  not  guilt}'. 

125.  Time  to  amend. 

126.  Questions  of  practice. 

127.  Whom  affected  by  judgment. 

128.  Defendant's  conclusive  possession. 

129.  Mistake  in  date  of  complaint. 

130.  Judgments  where  several  holdings. 

131.  Pursuing  two  remedies  at  one  time. 

Summ ons  from  Justice — Returnable  When. 

§  121.  Statutory  provisions.— Sec.  7.  When  the  sum- 
mons is  issued  by  a  justice  of  the  peace,  it  shall  specify  a 
certain  place,  day  and  hour  for  the  trial,  not  less  than 
five  nor  more  than  fifteen  days  from  the  date  of  the  sum- 
mons. 

Sum  monsfrom  Court — Returnable  When . 

Sec.  8. — When  the  summons  is  issued  out  of  a  court 
of  record,  the  summons  shall  be  made  returnable  on  the 
first  day  of  the  next  succeeding  term  of  said  court,  and 
if  not  served  ten  days  before  the  first  day  of  the  next 
term,  the  cause  shall  be  continued  to  the  next  term  of 
court. 

Service  of  Summons — Return — Publication^ 

Sec.  9.    Service  of  summons  shall  be  made  bv  deliver- 


150  STATUTORY    PROVISIONS.  [§121. 

ing  a  copy  thereof  to  the  defendant,  or  by  leaving  such 
copy  at  his  usual  place  of  abode,  with  some  person  of 
the  family  of  the  age  of  twelve  years  or  upwards,  and 
informing  such  person  of  the  contents  thereof.  The 
manner  of  the  service,  and  the  date  thereof,  shall  be 
indorsed  on  the  back  of  said  summons  bv  the  officer  serv- 
ing the  same.  When  service  cannot  be  had  as  provided 
in  this  section,  and  it  shall  appear  by  affidavit  or  the 
return  of  the  officer  that  the  defendant  is  not  a  resident 
of  this  State,  or  has  departed  from  this  State,  or  on  due 
inquiry  cannot  be  found,  or  is  concealed  within  this 
State  so  that  process  cannot  be  served  upon  him,  then,  if 
the  suit  is  in  a  court  of  record,  service  may  be  had  by 
notice  as  in  case  of  attachment  in  courts  of  record,  or  if 
the  suit  is  before  a  justice  of  the  peace,  by  notice  as  in 
case  of  attachment  before  justices  of  the  peace. 

Jury  Trial   Before  Justice. 

Sec  10.  In  trials  under  this  act  before  justices  of  the 
peace,  either  party  may  have  the  case  tried  by  a  jury,  if 
he  shall  so  determine  before  the  trial  is  entered  upon,  and 
will  first  advance  the  fees  of  the  iurors.  The.  number  of 
the  jurors  shall  be  six,  or  any  greater  number  not  exceed- 
ing twelve,  as  either  party  may  desire. 

Trial  in  Court  of  Record — Pleading. 

Sec.  11.  Trials  under  this  act  in  courts  of  record  shall 
be  the  same  as  in  other  cases  at  law  in  such  courts,  pro- 
vided no  special  pleading  shall  be  required;  but  the 
defendant  may.  under  the  plea  of  '"not  guilty,"  give 
in  evidence  any  matter  in  defense  of  the  action. 


§122.]  PLEADINGS.  15] 

Default — Trial  Ex  Parte. 

Sec.  12.  If  the  defendant  does  not  appear  (having 
been  duly  summoned  as  herein  provided),  the  trial  may 
proceed  ex  parte  and  may  be  tried  by  the  justice  of  the 
peace  or  judge  of  the  court,  without  the  intervention  of 
a  jury. 

<$  122.  Pleadings. — There  is  no  necessity  for  written 
pleadings,  other  than  the  plaint,  in  actions  of  forcible 
detainer  in  a  justice  court.  Section  11  of  the  forcible 
entry  and  detainer  act  refers  to  actions  brought  in  a 
court  of  record.  The  plea  and  abatement  of  the  pend- 
ency of  a  prior  suit  may  be  stated  orally.1 

The  general  denial  or  the  plea  of  not  guilty  is  always 
a  good  defense ;  it  puts  in  issue  all  the  material  allegations 
of  the  complaint  and  under  it  the  statutes  usually  allows 
all  the  matter  of  excuse,  justification  or  avoidance  to  be 
proved.  Where  the  declaration  alleged,  that  the  plaint- 
iff obtained  judgment  in  the  action  of  forcible  entry  and 
detainer  and  the  plea  did  not  deny  it,  no  evidence  of  that 
fact  was  necessary,  as  it  was  solemnly  admitted  by  the 
pleadings.2 

formal  defects  in  the  proceedings  may  be  taken  advan- 
tage of  by  a  plea  in  abatement,  as  in  other  actions.11 

The  allegations  of  the  complaint  must  be  construed 
most  strongly  against  the  pleader,  and  when  he  says  he 
has  possession  and  at  another   time   avers   the  contrary, 

1  Steele  v.  Grand  Trunk  Junction  Ry.  Co.,  125  111.  385. 

Watson  v.  Whitney,  23  Cal.  375;  McGlynn  v.  Moore,  25  Cal.  348. 
3Shunicket  al.   v.  Thompson,  25  111.   App.   619:  Steele  v.  Grand 
trunk  Junction  Ry.  Co.,  17  N.  E.  Rep.  483. 


152  AMENDMENTS.  [§123. 

the  complaint  shows  no  ground  of  action.  The  rule  that 
a  judgment  on  a  plea  -in  abatement  is  final  in  an  action 
for  specific  recovery  of  land  applies  to  an  action  under 
the  Illinois  forcible  entry  law.1 

In  landlord  and  tenant  cases,  the  tenant  is  usually 
estopped  to  deny  his  landlord's  title,  but  he  may  attorn 
to  another  claiming  title  from  the  landlord  and  defend 
on  that  ground ;  he  may  plead  that  the  term  has  not 
expired;  he  may  plead  fraud  on  part  of  the  landlord  in 
obtaining  a  lease  when  the  property  was  already  held 
under  a  contract  of  sale." 

Pending  an  appeal,  an  injunction  will  not  be  issued  to 
restrain  the  execution  of  a  writ  of  restitution,  this  object 
being  usually  accomplished  by  the  appeal  taken  by  the 
.•ippellant,  for  which  provision  is  made  in  the  statutes  of 
most  of  the  States. 

The  fact,  that  a  landlord  had  instituted  an  action  of 
forcible  entry  and  detainer  against  his  tenant,  would  not 
operate  to  deprive  the  landlord  of  his  right  to  make  entry 
under  the  agreement  in  the  lease,  he  having  a  right  to 
resort  to  either  or  both  remedies  at  the  same  time.3 

§  123.    Amendments In  commencing  the  action  of 

forcible  entry  and  detainer,  the  only  safe  course  is  to 
observe  the  requirements  of  the  statute  and  its  construc- 
tion by  the  supreme  court  in  decided  cases. 

Care  should  be  taken  to  have  the  notice  to  terminate 
the  tenancy,  the  demand  for  possession,  the  complaint  and 

1  Dickinson  v.  McGill,  9  Cal.  47. 

2  Locke  v.  Frasher,  79  Va.  409;  Alderson  v.  Miller.  15  Gratt.  (Va.) 
279. 

3Fabri  v.  Bryan  et  al.,  80  111.  182. 


§    124.]  1M.KA    <>K    NOT    GUILTY.  L53 

the  summons  on  the  defendant,  all  correctly  prepared,  as 
the  law  and  tacts  require.  And  when  the  trial  com- 
mences, if  any  of  these  are  informal,  the  defect  should 
be  remedied  by  amendment  instanter.  Any  action  of 
forcible  entry  and  detainer  that  may  be  brought  will 
come  under  a  clause  of  the  statute  as  hereinbefore  set 
forth.  And  on  the  trial  of  the  case,  it  is  necessary  to 
specially  see  that  no  part  of  the  evidence  necessary  to 
sustain  the  action  is  omitted. 

To  illustrate :  If  the  notice  and  demand  have  been 
made  by  an  authorized  agent,  the  proof  must  show  that 
the  agent  was  authorized,  and  that  the  act  done  by  him 
in  making  the  notice  or  demand,  was  done  in  his  capacity 
as  agent. 

§  124.  Plea  of  not  guilty. — The  statute  provides  as 
follows : 

"  In  trials  under  this  act  before  justices  of  the  peace, 
either  party  may  have  the  cause  tried  by  a  jury,  if  he 
shall  so  determine,  before  the  trial  is  entered  upon,  and 
will  first  advance  the  fees  of  the  jurors.  The  number  of 
jurors  shall  be  six,  or  any  greater  number  not  exceeding- 
twelve,  as  either  party  may  desire. " 

"Trials  under  this  act  in  courts  of  record,  shall  be  the 
same  as  in  other  cases  at  law  in  such  court;  provided, 
no  special  pleadings  shall  be  required ;  but  the  defendant 
may,  under  the  plea  of  '  not  guilty,'  give  in  evidence  any 
matter  in  defense  to  the  action.' ' 

"  If  the  defendant  does  not  appear  (having  been  duly 
summoned  as,herein  provided),  the  trial  may  proceed  ex 
'parte,  and  may  be  tried  by  the  justice  of  the  peace  or 
judge  of  the  court,  without  the  intervention  of  a  jury." 

1  Rev.  Stat.  chap.  57,  sees.  10,  11,  and  12. 


154  TIME    TO    A.MEND.  [§125. 

The  proceedings  under  the  statute  of  forcible  entry  and 
detainer,  being  summary  and  contrary  to  the  course  of  the 
common  law,  must  strictly  conform  to  the 'requirements 
of  the  statute. ' 

Appeals  in  a  forcible  entry  and  detainer  case  are  sub- 
ject to  the  same  rules  of  practice  as  appertain  to  ordinary 
appeals  from  justices  of  the  peace. 

§  125.  Time  to  amend. — In  practice,  in  cases  of  forcible 
entry  and  detainer,  amendments  may  be  made  in  the  com- 
plaint and  other  papers  in  the  case  as  fully  as  in  any 
other  cases.  Even  the  appeal  bond  may  be  amended  in 
the  discretion  of  the  court." 

And  the  supreme  court  has  held  that,  where  a  party 
desires  to  amend  an  appeal  bond,  it  is  the  exercise  of  a 
right  conferred  by  the  statute,  which  cannot  be  refused. 
The  court,  however,  has  the  right  to  fix  the  time  within 
which  it  shall  be  done.  In  the  case  here  cited,  the, 
plaintiff  in  error  offered  to  amend  his  bond,  but  the  court 
refused  to  permit  him  to  do  so,  and  dismissed  the  appeal, 
and  in  so  refusing  committed  an  error  for  which  the 
judgment  of  the  court  below  was  reversed." 

Generally,  all  amendments  are  in  the  discretion  of  the 
court,  and  are  allowed  or  refused  as  the  court  may  deem 
most  conducive  to  the  furtherance  of  justice  under  the 
particular  circumstances  of  the  case 

And  the  court,  after  holding  that   there  was  no  error 

1  Wells  v.  Hogan.  Breese,  337. 
-'  Harlan  v.  Scott.  2  Scam.  65. 

3  Weist  v.  The  people,  39  111.  507;  Carroll  v.  City  of  Jacksonville,  2 
Bradw.  481:  Spurck  v.  Forsyth,  40  111.  438. 
4Ballance  v.  Curtenius  et  al.,  3  Gilm.  449. 


8   125.1  TIME    TO    AMEND.  155 

in  granting  leave  to  amend  the  complaint,  added  :  ll  Even 
if  error  could  be  assigned  in  the  exercise  of  a  discretion- 
ary power  of  this  nature."  If  an  appeal  bond  is  insuffi- 
cient, it  is  the  duty  of  .the  court  to  require  a  new  bond, 
and  dismiss  the  case  unless  the  bond  is  given  within  the 
required  time.  And  no  motion  is  necessary  for  leave  to 
fill'  a  new  bond  when  the  first  is  held  insufficient.1 

If  a  bond  is  given  on  appeal  from  the  justice  court,  and 
is  adjudged  informal  or  otherwise  insufficient,  the  party 
executing  the  same  shall  be  in  no  wise  prejudiced  by 
reason  of  such  informality  or  insufficiency,  provided  he 
shall,  in  a  reasonable  time,  file  a  new  and  sufficient  bond. 
Almost  any  attempt,  made  in  good  faith,  to  execute  an 
appeal  bond,  requires  the  court  to  allow  such  amend- 
ments or  such  new  bonds  as  will  obviate  the  imperfec- 
tions." 

Technical  defects  in  the  transcript  from  the  justice's 
< locket,  or  in  the  appeal  bond,  will  not  prevent  the  appel- 
late court  taking  jurisdiction  of  the  appeal.  The  object- 
ing party  should  obtain  a  rule  to  remedy  the  defect.3 

Where  a  complaint  is  defective,  a  motion  to  quash  is 
the  proper  practice.  This  motion  should  be  made  before 
trial;  and  if  no  objection  is  made  to  the  complaint  in 
the  court  below,  it  is  too  late  in  the  Appellate  Court. 
And  on  trials  before  justices  of  the  peace,  any  matter  in 
abatement  should  be  insisted  on  at  an  early  stage  in  the 
suit.4 

'Wear  v.  Killeen,  38  111.  25'J. 

•  Hinmau  v.  Kitte  man,  40  111.  254. 
Fink  et  al.  v.  Disbrow,  09  111.  70. 

4Leary  v.  Pattison,  00  111.  203;  Jackson  v.  Warren ,  32  111.  331: 
Doran  v.  Gillespie,  54  111.  300:  Huftalin  v.  Misner,  70  111.  55;  Center 
v.  Gibney,  71  111.  557. 


I;  56  QUESTIONS    OF    PKACTICE.  [§126. 

§  126.  Questions  of  practice. — Vs  a  free-hold  is  not 
involved  in  an  action  of  forcible  detainer,  a  writ  of  error 
does  not  lie  from  this  court  to  the  trial  court  to  review 
the  proceedings:  such  writ  should  emanate  from  the 
Appellate  Court. ' 

In  an  action  of  forcible  entry  and  detainer,  the  court 
cannot  look  to  the  equities  of  the  parties,  but  must  enforce 
their  strict  legal  rights. " 

In  an  action  of  forcible  entry  and  detainer,  the  inquiry 
whether  the  plaintiff  is  entitled  to  rent  or  damages  is 
improper.      Xo  judgment  can  be  rendered  for  either/ 

Forcible  detainer  cannot  be  maintained  unless  the 
defendant's  possession  is  shown.4 

A  suit  for  forcible  entry  and  detainer  not  being  main- 
tainable because  of  a  failure  to  make  the  statutory  demand, 
the  defendant  appealing  from  the  justice's  judgment,  in 
behalf  of  plaintiff,  will  not  estop  the  plaintiff  from  giving 
the  required  notice  and  beginning  another  suit  without 
first  dismissing  the  appeal  suit  in  question.5 

Parol  evidence  cannot  be  heard  to  prove  that  the 
trustee  in  a  deed  of  trust  in  fact  made  no  sale  under  the 
same  to  contradict  the  deed  of  trust  and  the  deed  of  the 
trustee  made  in  foreclosure.0 

Proof  that  the  plaintiff  was  possessed  of  part  of  the 
premises  described  in  the  complaint  does  not  authorize  a 

)  Kepley  v.  Luke,  106  111.  395. 

-  111.  Cent.  R.  R.  Co.  v.  B.  &  O.  ct  C.  R.  R.  Co.,  23  111.  App.  531. 
:J  Shunick  et  al.  v.  Thompson,  25  111.  App.  619. 

4  Bowman  v.  Mehring,  34  111.  App.  389;  Murphy  v.  Dwyer,  11  111. 
App.  246. 

•  O'Malia  et  al.  v.  Glynn.  42  111.  App.  51. 
';AVindett.  v.  Hurlbut,  115  111.  403. 


S    127.]  WHOM    EFFECTED    in     JUDGMENT.  loT 

recovery  of  such  part.  The  act  regulating  the  action 
requires  a  particular  description  of  the  premises  to  be 
made  in  the  complaint,  and  the  proof  must  follow  and 
conform  to  the  description:1  but  this  matter  is  now 
regulated  by  Par.  17  of  the  statute. 

In  forcible  entry  and  detainer  cases,  the  statute  requires 
a  particular  description  to  be  made  in  the  complaint  of 
the  premises  sought  to  be  recovered  and  the  proof  must 
follow  and  conform  to  the  description  to  warrant  a 
recovery.2 

The  refusal  of  the  Circuit  Court  to  permit  an  amend- 
ment of  the  complaint  in  an  action  of  forcible  entry  and 
detainer  cannot  be  assigned  for  error.3 

A  variance  between  the  verdict  and  judgment  in  an 
action  of  forcible  detainer,  as  to  certain  lands,  was  held 
to  be  fatal.4 

§  121.  Whom  affected  by  judgment. — A  judgment  in 
forcible  entry  and  detainer  is  conclusive  only  as  to  the 
right  of  possession,  and  in  a  certain  class -of  cases  as  to 
the  existence  of  the  relation  of  landlord  and  tenant 
between  the  parties  and  as  to  the  tenant's  wrongful  hold- 
ing over. 

A  landlord  recovered  a  judgment  in  forcible  detainer 
against  his  tenant  and  sued  for  rents.  The  tenant  set 
up  in  defense  an  injury  for  the  breach  of  a  covenant  in 
the  lease  and  also  brought   his  action   against  the  land- 

1  Thompson  v.  Sornberger,  59  111.  326. 
-  House  v.  Wilder  et  al.,  47  111.  510. 
;  Ballance  v.  Curtenius  et  al.,  3  Gilmau  (111.)  419. 
4  Fanning  v.  N.  W.  Mutual  Life  Ins.  Co.,  6  111.  App.  •"■>:;<'>. 
Keating  v.  Springer,  146  111.  481. 


158  WHOM     A.FFECTED    ISY    JUDGMENT.  [§   127. 

lord  to  recover  for  the  breach  of  his  covenants.  Held, 
that  the  judgment  was  no  bar  to  the  second  snit  and  did 
not  preclude  the  tenant  from  recouping  damages  against 
the  rent.1 

One  who  does  not  purchase  pendente  lite  cannot  be 
injuriously  affected  by  a  judgment  or  decree  to  which  he 
was  not  a  party." 

Where  the  tenants  were  trespassers,  it  was  proper  for 
the  court  to  direct  the  jury  that  they  might  allow  interest 
on  the  rental  value  of  the  premises  wrongfully  withheld. 

When  judgment  is  passed  in  forcible  entry  and  detainer, 
under  a  power  in  the  lease  and  the  tenant  enters  a  motion 
to  vacate  the  judgment  and  files  therewith  an  affidavit 
disclosing  a  good  defense  in  law  to  the  plaintiff's  action, 
the  motion  should  be  granted.1 

An  execution  levied  on  goods  on  leased  premises,  prior 
to  the  distress,  takes  precedence  of  any  claim  the  land- 
lord may  have  for  the  rent  of  the  building  in  which  the 
goods  are  kept. ' 

A  judgment  in  the  case  being  for  a  sum  equal  to  the 
entire  amount  that  would  accrue  to  the  end  of  the  term, 
to  be  discharged  upon  the  payment  of  the  rent  found 
due,  up  to  the  bringing  of  the  present  suit,  together  with 
interest,  this  court  holds,  that  the  same  is  erroneous,  ami 
that  it  should  have  been  that  plaintiff  have  and  recover 
his  debt  to  the  amount  of  the  accrued  rent  and  his  daiu- 

1  Keating  v.  Springer,  14G  111.  481. 
Shunick  et  al.  v.  Thompson,  25  111.  App.  019. 
3  Lambert  et  al.  v.  Borden,  16  111.  App.  431. 
1  Ryan  v.  Kirchberg,  IT  111.  App.  132. 
5  Rowland  v.  Hewitt.  19  111.  App.  45(1. 


§128.]  COLLUSIVE    POSSESSION.  1  59 

ages  and  the  amount  of  the  interest  thereon  and  his 
costs  and  charges.1 

Where  a  complaint  in  forcible  entry  and  detainer  is 
defective  in  substance,  a  motion  to  quash  the  complaint 
will  avail  the  party  alleging  the  deficiency.2 

A  motion  to  quash  the  complaint  and  dismiss  the  cause, 
because  the  description  of  the  premises  is  insufficient,  and 
for  want  of  a  demand,  comes  too  late  after  the  jury  is 
impaneled  and  sworn  and  the  trial  has  commenced." 

An  objection  to  the  sufficiency  of  the  complaint  in 
forcible  detainer  must  be  made  by  motion  to  quash  before 
trial;  such  defect  cannot  be  taken -ad  vantage  of  on  the 
trial.3 

Where,  by  the  terms  of  a  lease,  payments  are  to  be 
made  in  monthly  installments,  action  may  be  brought  to 
recover  for  more  than  a  month  if  then  due,  and  the 
plaintiff  is  not  required  to  wait  until  the  expiration  of  a 
year  or  any  particular  time  longer  than  a  month  before 
bringing  suit.' 

As  the  proceeding  of  forcible  entry  and  detainer  is  in 
derogation  of  the  common  law  and  given  by  statute 
only,  the  requirements  of  the  statute  must  be  substan- 
tially observed  and  pursued." 

§  128.  Defendant's  collusive  possession. — Where  a 
defendant  obtained  possession  of  premises  through  collu- 
sion with  the  plaintiff's  tenant,    he  cannot,   until  lie  lias 

1  N.  W.  Brewing  Co.  v.  Manion,  47  111.  App.  627. 

-  Doran  v.  Gillespie,  54  111.  3(56. 

:|  Leary  v.  Pattison,  66  111.  203. 

4  Consolidated  Coal  Co.  of  St  Louis  v.  Pears  et  al. ,  39  111.  App.  453. 

'  Schaumtoeffel  v.  Belm,  77  111.  567. 


160  MISTAKE    IX    DATE.  [§129. 

surrendered  the  possession  to  the  landlord,  set  up  as 
against  the  landlord  a  right  of  possession  otherwise 
acquired.' 

An  appearance  before  a  justice  of  the  peace,  in  an 
action  of  forcible  detainer,  does  not  waive  any  defect  in 
the  notice  to  deliver  possession.2 

Proceedings  under  statute  for  forcible  entry  and  de- 
tainer must  strictly  conform  to  the  requirements  of  the 
statute.3 

A  defendant  may  set  up  and  prove  as  a  defense  to  this 
action,  that  the  plaintiff  in  the  suit  disclaimed  the  right 
of  possession  prior  to  the  defendant's  entry.4 

A  judgment  should  not  be  rendered  against  several 
defendants  where  the  evidence  shows  that  only  one  of 
them  was  in  possession  of  the  property  in  question.5 

A  lease  for  a  term  exceeding  ten  years,  of  lands  with 
improvements,  may  be  taxed  and  the  interest  of  the  ten- 
ant sold.  It  would  seem,  on  execution,  that  the  judgment 
in  such  case  should  be  against  the  leasehold,  where  it  is 
rendered  for  non-payment  of  taxes. 

An  objection  not  taken  in  a  court  below  will  not  be 
noticed  on  appeal  unless  the  complaint  is  so  defective  in 
substance  that  no  judgment  can  be  rendered  for  any  par- 
ticular premises.0 

§  129.  Mistake  in  date  of  complaint. — That  a  com- 
plaint bears  date  two  years  subsequent  to  the  other  pro- 

1  Ragor  v.  McKay  et  al.,  44  111.  App.  79. 
-Seem  v.  McLees,24  111.  192. 

3  Wells  v.  Hogan,  1  111.  337. 

4  Dudley  et  al.  v.  Lee,  39  111.  339. 
Norris  v.  Pierce.  47  111.  App.  463. 

6  Hilliard  v.  Carr,  6  Ala.  557. 


§    L30.]  SEVERAL    HOLDINGS.  161 

ceedirigs  in  the  case,  will  be  considered  a  mere  clerical 
error,  and  not  available.' 

On  dismissal  of  an  appeal  by  the  defendant  in  a  case 
of  forcible  detainer,  the  court  may  award  restitution.2 

In  an  action  for  forcible  entry  and  detainer,  the  fact 
that  the  plaintiff's  lease,  under  which  he  was  in  posses- 
sion at  the  time  of  the  defendant's  entry,  expired  before 
the  trial  of  the  action,  is  no  bar  to  a  recovery. 

An  heir  cannot  maintain  an  action  upon  a  bond  filed 
on  an  appeal  from  a  judgment  in  an  action  of  forcible 
entry  and  detainer,  to  recover  damages  accruing  after  the 
death  of  the  obligee  therein,  who  was  the  father  of 
plaintiff,  and  before  the  surrender  of  the  possession  of 
the  property  in  question.3 

§  130.  Judgment  where  several  holdings Sec.  15. 

Whenever  there  shall  have  been  one  lease  for  the  whole 
of  certain  premises,  and  the  actual  possession  thereof,  at 
the  commencement  of  the  suit,  shall  be  divided  in 
severalty  among  persons  with,  or  other  than,  the  lessee, 
in  one  or  more  portions  or  parcels,  separately  or  severally 
field  or  occupied,  all  or  so  many  of  such  persons,  with 
the  lessee,  as  the  plaintiff  may  elect,  may  be  joined  as 
defendants  in  one  suit,  and  the  recovery  against  them, 
with  costs,  shall  be  several,  according  as  their  actual 
holdings  shall  respectively  be  found  to  be. 

The  action  will  not  lie  against  two  or  more  holding"  in 
severalty. ' 

1  Powers  v.  David,  6  Ala.  9. 
-  Harlan  v.  Scott,  3  111.  65. 

3Keegan  et  al.  v.  O'Callaghan,  35  111.  App.  142. 
4  Gould  et  al.  v.  Hendrickson,  9  111.  App.  171:    Reynolds  v.  Thomas 
etal.,  17  111.  207. 
11 


162  PURSUING    Two    REMEDIES.  [§131. 

Four  notices  in  writing,  of  a  demand  of  possession  of 
land,  prepared  at  the  same  time  and  all  alike  except  that 
three  of  them  are  addressed  to  three  different  occupants 
of  the  land,  and  the  fourth  one  is  retained  by  the  party 
preparing  them,  all  are  original  duplicate  papers,  and  the 
names  of  parties  addressed  are  not  part  of  the  notice,  and 
the  one  retained  is  properly  admissible  in  evidence  as  a 
written  demand  to  support  an  action  of  forcible  entry  and 
detainer.1 

Color  of  title  is  a  question  of  law.2 

§  131.  Pursuing  two  remedies  at  the  same  time A 

seeming  conflict  of  remedies  arises  where  judgment,  for 
possession  of  lands  and  tenements,  is  rendered  by  the 
chancery  court,  while  the  action  of  forcible  entry  and 
detainer  is  pending  on  appeal.  But  this  conflict  is  avoided 
by  pursuing  both  remedies  until  satisfaction  of  one  is  had, 
exactly  as  two  judgments  may  be  obtained  on  the  same 
claim,  but  the  satisfaction  of  either  judgment  bars  all 
further  proceedings.  A  chancery  court  can  not  be  ousted 
of  jurisdiction  by  the  pendency  of  a  forcible  entry  and 
detainer  case  in  the  justice  court. 

Judgment  was  obtained  by  Whit  taker  against  Kes- 
singer,  in  an  action  of  forcible  entry  and  detainer,  before 
a  justice  of  the  peace,  for  the  possession  of  the  premises 
in  question,  from  which  judgment  Kessinger  took  an 
appeal  to  the  circuit  court.  Pending  this  appeal,  the 
circuit  court  in  chancery  rendered  a  decree  against  Whit- 
taker for  the   recovery   of  the   same   premises.      It    was 

1  Blanchard  et  al.  v.  Pratt,  37  III.  243. 

2  Woodward  v.  Blanchard,  16  111.  424:  Blanchard  et  al.  v.  Pratt.  37 
111.  24:5. 


§131.]  PURSUING    TWO    REMEDIES.  163 

then  objected  that  the  pendency  of  the  forcible  entry  and 
detainer  suit  barred  the  proceeding  in  chancery  while  the 
suit  was  so  pending  on  appeal.  The  court  held  that  the 
remedies  are  concurrent,  and  that  either  or  both  of  them 
might  be  pursued  until  a  satisfaction  was  had  of  one  or 
the  other,  which  satisfaction  would  operate  as  a  bar  to 
any  further  proceedings.  Were  a  bar  or  abatement  to 
apply  to  either  proceeding,  it  would  rather  be  to  the  suit 
at  law.  The  chancery  court  had  jurisdiction  of  the 
whole  subject  matter  before  the  commencement  of  the 
suit  at  law,  and  can  not  be  ousted  of  its  jurisdiction  by 
the  pendency  of  a  forcible  entry  and  detainer  suit  in  a 
court  of  law.1 

Where,  by  the  terms  of  the  lease,  a  greater  sum  of 
money  is  to  be  paid  upon  default  in  the  payment  of  a 
lesser  sum,  at  a  given  time,  the  provisions  for  the  pay- 
ment of  the  greater  sum  will  be  held  a  penalty.  And 
where,  by  the  terms  of  the  contract,  the  damages  are 
not  difficult  of  ascertainment  and  the  stipulated  damages 
are  unconscionable,  the  stipulated  damages  will  be 
regarded  as  a  penalty.2 

1  Vansant  v.  Allmon,  23  111.  30;    Kessinger  v.  Whittaker  et  al. ,  82 
111.  22. 
s  Poppers  v.  Meagher,  148  111.  192. 


164  tenant's  possession.  [§132. 


CHAPTER  XII. 

THE  TENANT  CAN  NOT  DISPUTE  THE  LANDLORD'S  TITLE. 

Section  132.  Tenant's  possession  that  of  the  landlord. 

133.  Jury  can  not  consider  title. 

134.  Tenant  must  restore  possession  to  lessor. 

135.  May  show  that  lessors  title  has  terminated. 

136.  What  the  tenant  may  show. 

137.  Deeds  may  be  read  to  show  boundaries. 

138.  The  true  meaning  of  the  law. 

139.  Can  show  source  of  title. 

140.  Mistake,  artifice  and  fraud. 

141.  The  settled  rule. 

§  132.    Tenant's  possession  that  of  the  landlord. — 

The  tenant  cannot  dispute  the  title  of  his  landlord.  The 
possession  of  the  tenant  is  that  of  the  landlord.1 

A  tenant  is  estopped  from  denying  the  title  of  his  land- 
lord.2 

The  question  in  forcible  entry  and  detainer  is  not  the 
title  of  the  premises,  but  one  of  possession  and  right  of 
possession.3 

A  tenant  is  estopped  from  denying  the  title  of  his 
landlord  and  his  possession  is  subservient   to  the  title  of 

1  Prettyman  v.  Walston  et  al.,  34  111.  175:  Doty  v.  Burdick,  83  111. 
473;  Ankeny  v.  Pierce.  1  111.  262. 

McCartney  v.  McMullen,  38  111.  237;  Rigg  v.  Cook,  4 Oilman  (111.), 
336:  Knight  v.  Knight  et  al.,  3  111.  App.  206. 

3Thomasson  v.  Wilson,  46  111.  App.  398:  Sexton  et  al.  v.  Carley, 
147  111.  269;  Phelps  v.  Randolph,  147  111.  335. 


§133.]  .ll'KY     CAN     NOT    CONSIDER    TITI.K.  It).', 

the  landlord,  and  he  will  not  be  permitted  to  betray  the 

possession  with  which  lie  was  intrusted.1 

§  133.  Jury  can  not  consider  title. —  In  an  action  of 
forcible  entry  and  detainer,  the  question  of  the  title  to 
the  premises  is  not  involved  and  can  not  be  shown  or 
considered  by  the  jury." 

Title  deeds  may  lie  introduced  in  an  action  of  forcible 
entry  and  detainer  to  show  the  character  or  extent  of  the 
possession  claimed.3 

The  validity  of  title  to  land  cannot  be  tried  in  this 
action.' 

Evidence  of  title  in  forcible  entry  and  detainer,  merely 
for  the  purpose  of  showing-  the  character  or  extent  of  a 
possession,  is  proper.5 

The  tenant  who  entered  into  premises  under  the  land- 
lord, thereby  acknowledges  that  the  landlord  is  the 
owner.0 

An  under-tenant  or  other  person  let  into  possession  by 
the  tenant  must  yield  the  possession  to  the  landlord  ; 
he  succeeds  to  the  original  tenant's  rights  and  nothing 
more. ' 

Where  the  owner  of  the  fee  accepts  a  lease  of  the 
premises  from  another  and  goes  into  possession  under  it, 
neither  he  nor  his  assignee  can  dispute  the  lessor's  right 

1  Doty  v.  Burdick,  83  111.  Ar.\. 
-  Doty  v.  Burdick,  83  111.  473. 

3  Ragor  v.  McKay  et  al.,  44  111.  App   79. 

4  Copping-er  et  al.  v.  Armstrong,  8  111.  App.  210:  Wheelan  v.  Fishv 
2  111.  App.  447. 

'  City  of  Bloomington  et  al.  v.  Brophy,  32  111.  App.  400. 
"Stillman  v.  Palis,  134  111.  ",32. 
•Thomasson  v.  Wilson,  14G  III.  384. 


166  TENANT    MUST    RESTORE    POSSESSION.  [§  134. 

to  lease,  at  least  not  until  he  shall  have  surrendered  the 
possession  to  him.1 

§  134.  Tenant  must  restore  possession  to  lessor. — 

A  tenant  is  not  permitted  to  dispute  the  title  under  which 
he  enters ;  he  must  restore  the  possession  to  the  land- 
lord before  he  can  assail  his  title.2 

The  principle  which  forbids  a  tenant  to  dispute  the 
title  of  his  landlord  applies  to  any  person  who  may 
acquire  the  possession  from  or  through  the  tenant ;  he 
will  acquire  no  greater  rights  than  the  tenant.3 

Where  actual  possession  of  a  part  of  the  premises  is 
shown  to  be  in  the  plaintiff  in  an  action  of  forcible 
detainer,  the  plaintiff's  deed  is  proper  evidence  for  the 
purpose  of  showing  the  extent  of  possession.4 

Title  is  immaterial  in  a  proceeding  for  forcible  entry 
and  detainer  except  to  show  the  extent  of  the  possession. 
Deeds  may  be  read  in  evidence  to  prove  boundaries  or 
extent  of  possession. ' 

It  is  equally  well  settled  that  the  tenant  is  not  estopped 
to  deny,  that  since  his  own  entry  into  possession  his 
lessor's  title  had  expired,  either  by  its  own  limitation, 
by  the  act  of  the  lessor  or  by  eviction  b\7  paramount 
title.6 

ITawes  et  al,  v.  Shaw,  100  Mass.  loT,  was  an  action 
for  possession  similar  to  the  action  of  forcible  detainer  in 
Illinois.7 

1  Kepley  v.  Luke,  106  111.  395. 
-  Alwood  v.  Mansfield,  33  111.  452. 

3  Griffin  v.  Kirk,  47  111.  App.  258. 

4  Fusselman  v.  Worthington,  14  111.  135. 
6  Hardin  v.  Forsythe  et  al.,  99  111.  312. 

6  Brooks  v.  Bruyn,  18  111.  539. 

'  Hilbourn  v.  Fogg  et  al.,  99  Mass.  11. 


§§135-137.]       lessor's  title  terminated.  161 

After  accepting  the  lease  and  thereby  solemnly  admit- 
ting: the  title,  it  is  too  late  to  deny  it.1 
§  135.  May  show  that  lessor's  title  has  terminated. 

— A  tenant  cannot  dispute  the  title  of  his  landlord  so 
long  as  it  remains  as  it  was  at  the  time  the  tenancy  com- 
menced ;  but  he  may  show  that  the  title  under  which  he 
entered  has  expired,  or  been  extinguished.2 

Where  a  person  enters  into  possession  of  lands  as  a 
tenant,  before  he  can  assail  or  call  in  question  the  title  of 
the  landlord,  he  must  restore  the  possession  to  him  and 
place  the  landlord  in  the  same  position  he  occupied 
before  he  parted  with  the  possession  of  his  lands.3 

^  136.  What  the  tenant  may  show — While  a  tenant 
cannot  dispute  his  landlord's  title,  he  may  show  it  has 
terminated  either  by  its  own  limitation  or  by  conveyance.4 

... 

Deeds  may  be  read  in  evidence  on  the  trial  of  forcible 
entry  and  detainer  to  show  the  extent  of  the  possession. ' 

A  tenant  ma}'  show  that  the  title  of  a  landlord  has 
terminated,  that  the  landlord  has  conveyed  to  another, 
or  that  his  title  has  been  sold  on  execution  and  in  that 
manner  passed  into  other  hands.0 

§  137.  Deeds  may  he  read  to  show  boundaries.— 
Deeds  under  which  a  party  claims  may  be  read  in  evi- 
dence in  an  action  of  forcible  detainer  for  the  purpose 
of  showing  the  boundaries  or  extent  of  possession.7 

1  Dunbar  v.  Bonesteel,  3  Scam.  (111. )  32. 
-  Bigler  v.  Furman  et  al.,  58  Barbour,  555. 
3 Hardin  v.  Forsythe  et  al.,  99  111.  312. 
4  St.  John  v.  Quitzow,  72  111.  334. 

Smith  v.  Hoag.  45  111.  250. 
0  Hardin  v.  Forsythe,  99  111.  312. 
•  Griffin  v.  Kirk.  47  111.  App.  258. 


168  MEANING    OF    THE    I-AW.  [§    138,    L39. 

The  principle,  that  the  tenant  cannot  deny  his  land- 
lord's title  does  not  prohibit  the  tenant  during  his  ten- 
ancy from  purchasing  an  out-standing  title  and  from 
asserting  the  same  against  the  landlord  after  the  expira- 
tion of  the  tenancy  and  after  he  yields  up  the  possession.1 

A  deed  to  the  premises  is  admissible  in  evidence  on  a 
trial  of  an  action  of  forcible  entry  and  detainer,  for  the 
purpose  of  establishing  the  extent  of  the  plaintiff's  claim  ; 
also  to  show  the  animus — the  intention  with  which  the 
party  entered.2 

The  tenant  may  show  that  the  lessor  had  but  a  limited 
interest,  which  has  determined.3 

§  138.  The  true  meaning  of  the  law.— The  true 
meaning  of  this  is,  that  a  tenant  shall  not  deny  the  title 
under  which  he  enters,  or  set  up  a  title  in  another,  in 
contravention  of  the  one  he  has  admitted.  But  a  tenant 
may  always  show  that  his  landlord's  title  has  expired  at 
the  time  of  suit  brought,  or  that  he  has  sold  his  interest 
in  the  premises,  or  that  it  is  aliened  from  him  by  judg- 
ment and  operation  of  law.  This  is  no  denial  of  the 
landlord's  original  right.  There  is  nothing  in  such  a 
defense  incompatible  with  the  tenant's  implied  admission 
in  accepting  the  lease.4 

^  139.  Can  show  the  source  of  title.— Although  it  is 
true  that  forcible  entry  and  detainer  is  a  possessory 
action  in  which  title  is  not  involved  and  cannot  be  tried, 

1  Gable  v.  Wetherholt.  116  111.  313. 

2  Pearson  v.  Herr,  53  111.  144. 

'■'•  Wells  v.  Mason  et  al.,  4  Scammon  (111.),  84. 
4  Den  ex  dem.  Howell  v.  Ashmove,  2  Zab.  265. 


§    139.]  MEANING    OF    THE    LAW.  169 

yet  the  rule  has  never  been  held  so  rigid  as  to  preclude 
the  defendant  from  showing  the  source  of  his  claim.1 

A  lessee  may  show  that  his  lessor's  title  has  expired, 
but  he  cannot  show  that  it  never  existed.  Although  a 
tenant  without  a  surrender  or  eviction,  or  something- 
equivalent  thereto,  cannot  showT  that  the  title  of  his 
landlord  was  not  a  valid  one  when  he  entered  under  him, 
he  can  show  that  such  valid  title  has  been  legally  extin- 
guished or  determined,  so  that  it  no  longer  exists. 

He  does  nothing  thereby  inconsistent  with  the  lessor's 
right  to  grant  the  original  lease.  The  tenant  cannot  be 
allowed  to  plead  to  his  landlord's  action  nil  habuit  in 
tenementis,  but  he  can  plead  nil  halet,  etc.  A  tenant  i\nc± 
not  deny  that  the  landlord  had  a  title  at  the  beginning  of 
the  lease  by  showing  that  the  same  title  has  expired.2 

In  Taylor  on  Landlord  and  Tenant,  section  70.5,  it  is 
said:  k'No  proof  of  title  is  required  in  this  action 
(ejectment)  when  it  is  brought  by  a  landlord;  since  if 
a  tenant  has  once  recognized  the  title  of  the  plaintiff  and 
treated  him  as  his  landlord  by  accepting  a  lease  from 
him,  or  the  like,  he  is  precluded  from  showing  that  the 
plaintiff  had  no  title  at  the  time  the  lease  was  granted.'' 

An  exception  to  the  general  rule  preventing  a- tenant 
from  denying  his  landlord's  title  is,  where  he  has  been 
induced  by  artifice,  fraud  or  mistake  to  accept  the  lease. 
In  such  case,  he  may  show  better  title  in  himself,  or  in 
any  third  party  under  whom  he  claims.  He  will  be  per- 
mitted to  avoid  the  lease  by  proof  of  such  facts  as  would 

1  Nicholson  et  al.  v.  Walker  et  al.,  4  111.  App.  404. 
-  Herman  on  Estoppel,  sec.  868. 

;Langforcl  v  Selmes.  3  Kay  &  J.  220:  Tilghman  et  al.  v.  Little,  13 
111.  239. 


170  MISTAKE.   AKTIFICE,    AND   FKAUD.  [§  140. 

warrant  relief  in  equity  from  any  other  obligation  created 
by  deed.1 

§  140.  Mistake,  artifice,  and  fraud.— While  a  tenant 
cannot  affect  his  landlord's  interest  by  accepting  a  lease 
from  another,  he  may,  by  accepting  two  leases  of  the 
same  premises  for  the  same  time,  estop  himself  from 
denying  the  title  of  either;  yet  an  exception  to  this  rule 
is  recognized,  where  the  tenant,  already  in  possession 
under  the  first  lease,  accepts  the  second  lease  through  mis- 
take, artifice,  or  fraud." 

Although  the  tenant  cannot  deny  his  landlord's  title, 
he  may  show  that  he  had  a  limited  estate  only,  which  is 
determined  by  its  own  limitation  before  the  cause  of 
action  accrued,  as  one  to  hold  the  estate  for  the  life  of 
another,  or  the  like,  which  expired  during  the  term ; 
or  that  he  has  sold  and  conveyed  the  land ;  or  that  he 
has  been  evicted  by  title  paramount ;  or  that  his  title  has 
been  sold  under  execution  and  conveyed.  This  rule 
applies,  whether  the  action  be  for  the  recovery  of  prem- 
ises or  for  rent  accrued  after  the  extinguishment  of  the 
landlord's  title.3 

The  tenant  cannot  set  up  a  better  title  in  himself  or 
in  a  third  person.  He  can  do  no  act  which  may  defeat 
or  endanger  the  title  of  his  landlord ;  he  must  surrender 
up  the  possession  before  he  can  assail  or  question  the 
title  and  put  the  landlord  in  the  position  he  occupied 
when  he  parted  with  the  possession.  And  the  same 
principle  applies  to  those  acquiring  the  possession  from 

1  Carter  v.  Marshall.  72  111.  609. 

2  Pettersou  v.  Sweet,  13  111.  App.  '2.j.j. 

:;  Corrigan  et  al.  v.  City  of  Chicago  et  al.,  144  111.  ."i:!7. 


I    140.  I  MISTAKE,    ARTIFICE,    AND    FRAUD.  171 

a  tenant.  The  relation  of  landlord  and  tenant  attaches 
to  all  who  succeed  to  the  possession  through  or  from  the 
tenant,  and  they  have  no  greater  right  than  the  party 
from  whom  they  receive  possession.1 

As  a  general  rule,  the  title  cannot  he  inquired  into  in 
this  form  of  action;  yet  it  is  admissible  to  look  to  the 
title  to  define  the  boundaries;  or  in  view  of  the  question 
of  damages  or  rents  to  be  recovered  in  an  action  brought 
by  a  mere  intruder  against  the  rightful  owner  of  the 
land ;  or  where  the  claimant  by  fraud  induces  another  to 
take  a  lease,  or  to  enter  under  him  upon  a  false  repre- 
sentation as  to  his  title.  In  such  cases  and,  perhaps 
others,  the  title  may  be  looked  to  upon  the  question, 
whether  the  case  made  out  constitutes,  in  law,  a  wrong- 
ful entry  or  detainer." 

A  tenant  may  admit,  that  the  landlord  had  title  at  the 
time  he  leased  the  premises  and  then  show  that  since 
that  time  the  landlord  had  parted  with  his  title,  but  he 
cannot  show  that  the  landlord  had  no  title  at  the  time  he 
leased  the  premises,  as  this  would  violate  the  principle  of 
the  tenant  denying  his  landlord's  title.  This  distinction 
is  set  forth  in  Taylor's  Landlord  and  Tenant,  7th  ed. 
sec.  s'.»,  p.  70;  sec.  629,  p.  540;  sec.  705,  p.  593;  and 
in  sec.  629  it  is  said  :  "The  rule  is  well  settled  that  the 
tenant  is  not  allowed  to  dispute  his  landlord's  title  after 
having  accepted  possession  under  him.  A  lessee  may. 
however,  plead  that,  although  the  lessor  had  an  interest 
in  the  premises  at  the  time   of  the  making  of  the  lease, 

1  Sexton  et  al.  v.  Carley,  147  111.  269. 

-  Philips  v.  Sampson,  2  Head  (Tenn.),  429. 


172  THE    SETTLED    RULE.  [   >J   141. 

his  interest  terminated  before  the  alleged  cause  of  action 
arose." 

§  141.  The  settled  rule The  well  settled  rule  of  law, 

by  which  a  tenant  who  has  entered  into  possession  under 
an  oral  lease  is  estopped,  so  long  as  he  continues  in  posses- 
sion under  the  lease,  to  deny  the  lessor's  title  at  the  time 
of  making  the  lease,  as  against  the  lessor,  his  heirs  and 
assigns,  is  founded  on  the  injustice  of  allowing  a  person 
who  has  obtained  possession  by  admitting  the  title  of 
another,  to  deny  that  title,  and,  in  case  of  failure  of 
proof  of  it,  hold  the  premises  himself.  The  rule  holds 
good  where  the  actual  title  of  the  lessor  is  that  of  a  mere 
tenant  at  will,  and  applies  in  every  form  of  action,  by 
which  the  lessor  may  seek  to  assert  the  rights  reserved 
or  promised  to  him  in  his  lease.1 

If  a  tenant  claims  premises  adversely  to  his  landlord, 
cither  for  himself  or  another,  his  possession  from  that 
moment  becomes  tortious  and  the  landlord  may  treat  the 
tenancy  as  dissolved  and  regain  the  possession  by  an 
action  of  forcible  entry  and  detainer.  This  principle 
applies  to  all  who  succeed  to  the  possession  from  or 
through  the  tenant, — they  occupy  the  same  position  and 
are  held  to  the  same  responsibility." 

1  Hilboura  v.  Fogg  et  al.,  99  Mass.  11. 
•  Fusselman  v.  Worthington,  14  111.  135. 


;<  L42.1  THE  PROOF  NECESSARY.  1  73 

CHAPTER    XIII. 

EVIDENCE. 

Section  142.  The  proof  necessary  to  support  the  action  of  forcible 
entry  and  detainer. 

143.  The  proof  in  case  of  forcib'e  entry. 

144.  Wrongful  withholding. 

145.  In  case  of  unoccupied  lands. 

14(5.  Holding  over  after  termination  of  lease. 

147.  Holding  under  contract  of  purchase. 

148.  Holding  after  judgment  of  ouster. 

149.  Defective  description  can  not  be  supplied  by  parol 

proof. 

§  142.  The  proof  necessary  to  support  the  actiou  of 
forcible  entry  and  detainer. — Declarations  of  an  occu- 
pant of  land  at  the  time  of  entry  may  be  shown  to 
explain  its  character  and  are  admissible  in  his  behalf.1 

The  defendant  cannot  show  an  equitable  title  in  him- 
self to  the  premises.2 

Evidence  to  disprove  the  title  of  the  complainant  in 
forcible  entry  and  detainer  is  irrelevant  and  inadmissible, 
title  not  being  in  issue,3 

On  the  trial  of  cases  in  forcible  entry  and  detainer, 
when  a  demand  is  required,  it  must  be  proved  to  have 
been  made  as  the  statute  requires  on  the  trial,  to  entitle 
plaintiff  to  recover.4 

1  Croff  v.  Ballinger,  18  111.  200. 
-  Taylor  v.  White,  1  T.  B.  Mon.  (Ivy.)  37. 
:;  Fortier  et  al.  v.  Ballance,  5  Oilman  (111.),  41. 

4  Foss  v.  Foss,  2  Bradw.  411;  Wheelan  v.  Fish.  2  Bradw.  447;  Leh- 
man v.  Whittington,  8  Bradw.  374. 


174  PROOF    IX    CASE    OF    FORCIBLE    ENTRY.  [§143, 

Iii  a  case  where  the  demand  was  defective,  it  was 
claimed  by  the  plaintiff  that,  by  appearing  before  the 
justice  of  the  peace  and  contesting  the  case  on  its  merits, 
the  defendant  waived  any  defect  in  the  demand,  and  that 
it  was  too  late  to  take  the  objection  on  appeal.  The 
court  held,  that  the  objection  was  not  of  a  dilatory  char- 
acter. Until  such  demand  was  made,  the  defendant  was 
not  2-uiltv  of  forcible  detainer,  under  the  statute.  The 
proof  of  the  demand  was  an  essential  part  of  the  plaint- 
iff's case,  as  much  as  proof  of  tenancy  ;  and  if  no  such 
demand  was  made,  the  defendant  was  not  guilty.1 

.^  143.  The  proof  in  case  of  forcible  entry. —  The 
evidence  necessary  to  support  the  action  of  forcible  entry 
and  detainer  will  vary  to  some  extent,  according  to  the 
facts  of  each  particular  case  arising  under  the  statute. 

First — To  support  the  action  under  the  first  clause  of 
Sec.  2,  Chap.  57,  of  the  statute  in  relation  to  forcible 
entry  and  detainer,  it  is  necessary  to  prove — 

a That  the  plaintiff  had  the  actual  and  exclusive  pos- 
session of  the  premises  claimed,  at  the  time  of  the  entry 
or  invasion  charged. 

As  to  what  will  constitute  a  sufficient  actual  possession 
within  the  meaning  of  the  statute,  see  chapter  where 
the  law  and  the  cases  on  this  subject  are  fully  considered. 

The  following  cases,  coming  directly  under  this  clause 
of  the  statute,  are  here  cited  :a 

'Seem  v.  McLees,  24  111.  193;  Mann  v.  Brady,  07  111.  95;  Thomson 
v.  Sornberger,  59  111.  326. 

2  Allen  v.  Tobias,  77  111.  169;  Huftalin  v.  Misner,  70  111.  205;  Brooks 
v  Bruyn.  18  111.  539:  Hardisty  v.  Glenn,  32  111.  62;  Fairman  v.  Beal, 
14  111.  2-14;  Pearson  v.  Herr,  53  III.  144:  Smith  v.  Hoag,  45  111.  250; 
Croff  v.  Fallinger,  18  111.  200. 


8  143.]  PROOF    IN    CASE    OF    FORCIBLE    ENTRY.  175 

7,_That  defendant  invaded  that  possession  by  making 
a  forcible  entry.  But  actual  force  need  not  be  proven, 
as  any  entry  which  is  against  the  will  of  the  occupant, 
is  forcible  within  the  meaning  of  the  statute.1 

c — That  the  possession  so  taken  is  withheld  by  the 
defendant. 

It  is  necessary  to  prove  the"  withholding  by  the  defend- 
ant, because  if  he  does  not  withhold  the  premises,  he  has 
nothing  he  can  restore  to  the  plaintiff,  and  the  latter  can 
take  possession  without  process  of  law. 

Under  this  clause  of  the  statute,  a  demand  of  posses- 
sion before  bringing  suit,  would  seem,  upon  principle, 
unnecessary,  the  defendant  being  a  trespasser  and  his  act 
unlawful.  The  principle  is  the  same  as  in  replevin, 
where  a  party  comes  into  possession  of  property  by 
his  own  wrongful  act,  lie  is  not  entitled  to  a  demand 
before  an  action  can  be  brought  against  him. 

The  statute  specially  requires  a  demand  for  possession 
in  certain  cases  enumerated,  and  does  not  require  that  a 
demand  shall  be  made  in  the  case  above  mentioned. 
The  inference,  therefore,  is,  that  a  demand  in  this  case 
is  unnecessary. 

And  in  Missouri  it  is  held,  that  "unless  the  original 
entry  is  unlawful,  it  will  be  necessary  to  prove  a 
demand,"  thus  implying  that  no  demand  is  necessary 
where  the  original  entiy  is  unlawful." 

But  the  Illinois  cases  are  silent  as  to  this  point,  except 
that  in  Huftalin  v.  Mimer,  70  111.  205.  the  court  refused 

1  Atkinson  v.  Lester,  t  Scam.  407;  Smith  v.  Hoag,  45  111.  250;  Croff 
v.  Ballinger,  18  111.  200. 

-Prehman  v.  Stifel.  41  Mo.  1S4. 


17G  Wrongful  withholding.       f  §§  144,  145. 

to  admit  that  any  demand  was  necessary  in  this  class  of 
cases. 

§  144.  Wrongful    withholding Still,  it  is  the  usual 

and  perhaps  safer  course,  to  make  a  formal  demand 
before  bringing  the  action,  and  at  the  same  time  it  is 
easier  to  prove  a  withholding,  a  demand  having  been 
made. 

Second.  To  sustain  the  action  for  the  second  statutory 
cause,  where  a  peaceable  entry  is  made  and  possession 
wrongfully  withheld,  it  is  necessary  to  prove — 

a — That  the  plaintiff  is  entitled  to  the  exclusive  posses- 
sion of  the  premises. 

h — That  the  defendant  obtained  peaceable  possession 
thereof. 

c — -That  demand  was  made  for  possession  as  required 
by  the  statute. 

d — That  possession  was  withheld  after  such  demand. 

£  145.  In  case  of  unoccupied  lands. —  Third.  To  sus- 
tain the  action  in  case  the  entry  was  made  into  vacant 
and  unoccupied  land,  or  tenements  without  right  or  title, 
it  is  necessary  to  prove — 

a — That  the  lands  were  vacant  or  unoccupied.1 

h — That  plaintiff  has  such  interest  in  the  premises  as 
entitles  him  to  possession  of  the  same,  as  it  is  presumed 
in  law  that  he  who  has  title  of  vacant  lands  has  posses- 
sion. 

c — That  defendant  entered  into  possession  of  the  prem- 
ises, while  so  vacant  or  unoccupied,  without  right  or  title 
thereto. 

1  McCartney  v.  McMulIen,  38  111.  237;  Hassett  v.  Johnson,  48  111.  69. 


§146.]  HOLDING    OVER    A.FTEE    TERMINATION.  I  77 

Formerly  ejectment  was  the  only  remedy,  as  it  was 
held  that,  forcible  entry  and  detainer  would  not  lie  where 
plaintiff  had  not  the  actual  possession  at  the  time  of  the 
entry  by  the  defendant. 

To  provide  a  more  convenient  remedy,  this  statute  was 
passed. 

No  demand  for  possession,  before  bringing  suit,  is 
required  by  the  statute,  and  for  reasons  above  given, 
none  would  seem  necessary. 

(I — That  defendant  unlawfully  withholds  the  possession 
of  the  premises. 

Whoever  has  the  actual  possession  of  land,  claiming  the 
fee,  is  presumed  to  have  it  until  the  contrary  appears, 
and  may  maintain  an  action  for  the  invasion  of  the  pos- 
session against  any  one  but  him  who  has  the  legal  title 
and  right  of  possession. 

But  whoever  has  the  title  of  unoccupied  land  is  deemed, 
in  law,  to  be  in  possession  for  all  purposes  in  defense  or 
protection  of  his  rights.  So  that  forcible  entry  and 
detainer  can  be  maintained  by  the  rightful  owner  against 
one  making  entry  into  unoccupied  lands  or  tenements 
without  right  or  title.  But  if  A.  takes  possession,  law- 
fully, of  previously  unoccupied  lands,  claiming  title 
thereto,  and  B.,  who  also  claims  title,  invades  A.'s  pos- 
session, and  it  appears  that  A.  entered  in  good  faith, 
with  intention  of  making  improvements,  B.  can  not 
maintain  forcible  entry  and  detainer  against  A.,  even  if 
he  has  the  better  right.1 

^  14C>.  Holding  over  after  termination  of  the  lease. 
— Fourth.    To  sustain  the  action  of  forcible  entry  and 

1  Brooks  v.  Bruyn,  18  111  539 
12 


17N  HOLDING     UNDER    CONTRACT.  [§147. 

detainer  under  the  fourth  statutory  cause,  it  must  be 
proven — 

a — That  the  relation  of  landlord  and  tenant  existed 
betAveen  the  plaintiff  and  defendant. 

h — That  the  landlord  is  entitled  to  possession  of  the 
premises. 

c — That  the  tenancy  has  been  terminated  by  its  own 
limitation,  conditions  or  terms,  or  by  notice  to  quit  or 
otherwise. 

d — That  the  demand  for  possession  has  been  made  (if 
required). 

But  where  the  tenancy  has  been  terminated  by  notice 
under  sections  5  and  6,  Revised  Stat.  chap.  80,  no  demand 
is  necessary. 

e — That  the  premises  are  withheld  by  defendant  after 
the  determination  of  the  tenancy  and  demand  for  posses- 
sion, if  demand  is  required. 

§  147.   Holding  under  contract  of  purchase — Fifth. 

To  sustain  this  action  under  the  fifth  cause  named  in  the 

i 
statute,  it  is  necessary  to  prove — 

a — That  plaintiff  sold  the  premises  to  the  defendant 
by  agreement  to  purchase,  and  that  defendant  took  pos- 
session under  this  agreement. 

h — That  defendant  has  failed  to  comply  with  the  agree- 
ment, before  receiving  a  deed  for  the  premises. 

c — That  demand  in  writing  has  been  made  by  the 
plaintiff  for  the  possession  of  the  premises.1 

d — That  the  plaintiff  is  entitled  to  the  possession  of 
the  premises. 

1  Lesher  v.  Sherwin.  86  111.  421. 


§    148.]  IK)I.I)].\(.     A.FTEE    JUDGMENT.  L79 

e — That  defendant  withholds  possession  of  the  prem- 
ises after  the  said  demand. 

Where  a  vendor  brings  an  action  against  the  purchaser 
to  recover  possession  for  non-compliance  with  the  con- 
tract of  sale,  it  will  be  sufficient  to  show  that  the  defend- 
ant, at  the  time  the  suit  was  brought,  was  in  possession 
by  himself  or  by  others  holding  under  him. 

<$  148.  Holding  after  judgment  of  ouster. — Sixth.  To 
sustain  the  action  of  forcible  entry  and  detainer  under  the 
sixth  statutory  cause,  it  must  be  shown  in  proof — 
.    a — That  plaintiff  is  a  purchaser  at  a,  judicial  sale,  or 
otherwise,  of  the  premises  in  question. 

b — That  the  premises  have  been  conveyed  by  a  grantor 
in  possession,  or  sold  under  a  judgment  or  decree  of  court 
in  this  state,  or  sold  by  virtue  of  a  mortgage  or  deed  of 
trust. 

c — That  the  time  for  redemption,  if  any  allowed,  has 
expired. 

(/ — That  demand  in  writing  for  possession  has  been 
made  on  the  defendant. 

e — That  the  party  in  possession  refuses  or  neglects  to 
surrender  the  same.1 

To  recover  in  this  action  under  the  act  of  1861,  against 
one  who  remains  in  possession  after  his  rights  have  been 
divested  by  judicial  sale,  the  plaintiff  must  show  a  valid 
judgment,  execution  and  deed. 

Inasmuch  as  the  title  to  the  property  in  question  is 
not  in  issue  in  the  action  of  forcible  entr}r  and  detainer, 
a  deed  can  not  be  introduced  to  show  title,  but  can  be 
introduced  to  show  extent  of   possession — that   is,  where 

'Wheelan  v.  Fish,  2  Bradw.  44?. 


L80  DEFECTIVE    DESCRIPTION.  |    §    14i». 

actual  possession  of  part  of  the  premises  is  shown  to  be 
in  the  plaintiff,  he  may  then  introduce  his  deed  to  the 
premises  for  the  purpose  of  showing  that  he  possessed  all 

of  the  tract,  or  to  show  the  extent  of  his  possession. 
So,  deeds  can  he  used  in  evidence  to  show  boundaries.1 
And  deeds  may  also  be  introduced  to  show  the  animus 
or  intention  with  which  a  party  enters,  in  connection 
with  possession  and  improvement  of  a  farm  to  which  a 
wood  lot  is  joined,  the  latter  being  the  land  in  contro- 
versy.'1 

;<  149.  Defective  description  cannot  be  supplied  by 
parol  proof. — If  the  description  of  the  premises  as  set 
forth  in  the  complaint  is  defective,  it  can  not  be  supplied 
by  parol  proof.3 

And  proof  must  be  made  of  the  holding  over  by  the 
tenant,  in  a  case  of  termination  of  the  tenancy.  Where, 
on  the  trial  of  an  action  of  forcible  entry  and  detainer, 
it  was  proven  that  the  relation  of  landlord  and  tenant 
existed  between  the  parties,  and  the  possession  of  the 
tenant  and  the  payment  of  rent  up  to  a  time  named; 
that  a  written  notice  had  been  served  on  defendant  to 
quit  and  deliver  up  possession  of  said  premises  to  plaint- 
iff; but  there  was  no  evidence  to  show  that,  after  the 
expiration  of  the  time  named  in  said  notice,  the  defend- 
ant continued  in  possession  of  the  premises,  or  neglected 
or  refused  to  surrender  the  same  to  the  plaintiff;  it  was 
held,  that  the  gist  of  the  action  is  the  wrongful  holding 
over  by  the  tenant  after  the  termination  of  the  tenancy  : 

'Johnson  v.  Bantock,  38  111.  Ill:  Harmon  v.  Larned,  58  la.  Kill. 

Huftalin  v.  Misner.  TO  111.  20".;  Brooks  v.  Bruyn.  18  111.  53!». 
3  Pearson  v.  Herr.  53  111.  145;  Schaumtoeffel  v.  Belm,  T7  111.  ">69. 


§    L49.]  DEFECTIVE    DE8CEIPTION.  LSI 

and  it  is  manifest  that,  in  the  absence  of  the  proof  of 
such  holding  over,  he  can  not  recover.1 

And  in  an  action  of  forcible  entry  and  detainer,  under 
the  statute,  by  a  purchaser  at  a  foreclosure  sale  against 
a  mortgagor  in  possession,  the  plaintiff  must  prove,  not 
only  a  demand  for  possession  of  the  premises,  but  also. 
that  the  defendant  refused  or  neglected  to  surrender  pos- 
session after  such  demand." 

Evidence  mav  also  be  (riven  bv  a  vendor,  in  an  action 
of  forcible  entry  and  detainer,  against  the  vendee,  to 
recover  possession,  of  a  written  agreement  to  sell,  and  of 
a  tender  of  a  deed,  to  show  that  defendant  has  failed  to 
comply  with  the  agreement.3 

In  an  action  on  an  appeal  bond,  given  in  an  action  of 
forcible  entry  and  detainer,  conditioned  to  pay  all  rent 
due  and  to  become  due,  the  original  lease  is  proper  evi- 
dence to  show  what  rent  should  be  paid. 

And  in  a  similar  action,  a  witness  was  allowed  to  tes- 
tify to  what  rent  he  paid  for  a  lot,  about  one-half  the 
size  of  the  one  involved  in  the  detainer  suit,  and  adjoin- 
ing it,  as  a  circumstance  to  go  to  the  jury,  tending  to 
establish  the  rental  value;  but  the  correctness  of  this 
ruling  is  doubtful.' 

A  written  lease  provided,  that  the  tenant  should  sur- 
render the  demised  premises  at  the  expiration  of  the 
lease,  and  a  co-temporaneous  parol  agreement  was  made 
to  the  effect,  that   the   lessee  might  remain  in  the  occu- 

1  Murphy  v.  Dwyer,  11  Bradw.  247. 

2  Hersev  v.  Westover,  11  Bradw.  197. 
3Lesher  v.  Sherwin,  86  111.  421. 

'  Clapp  et  al.  v.  Noble,  84  111.  62. 


182  DEFECTIVE    DESCRIPTION.  [§149. 

pancy  of  the  demised  premises  after  the  expiration  of 
the  lease,  but  as  tenant  from  month  to  month.  In  this 
case,  the  parol  agreement,  made  at  the  same  time  as  the 
written  lease,  under  seal,  and  being  in  reference  to  the 
same  subject  matter,  must  be  regarded  as  merged  into 
the  writing  and  cannot  be  admitted  in  evidence.1 

Matters  of  evidence.  —  Where  the  execution  of  a  written 
instrument  sued  on  had  been  proved  and  other  evidence 
adduced  in  relation  to  it,  it  was  a  proper  exercise  of  dis- 
cretion for  the  court  to  permit  the  counsel  for  the  plaintiff 
to  read  it  to  the  jury  for  the  first  time  in  his  closing 
argument.3 

In  regard  to  the  animus  with  which  a  party  enters 
into  the  possession  of  premises,  and  in  regard  to  the 
question  whether  the  entry  was  made  against  the  will  of 
the  occupant,  it  is  competent  to  prove  the  declarations 
of  dissent  or  opposition,  of  the  party  in  possession,  to  the 
entry  of  the  other  party,  made  on  the  occasion  of  the 
entry,  and  the  jury  have  a  right  to  consider  such  dec- 
larations as  part  of  the  res  gestae,  in  considering  their 
verdict.3 

1  Keegan  et  al.  v.  Kinnaire,  12  111.  App.  484. 
J  Berrington  v.  Casey,  78  111.  317. 
3Croff  v.  Ballinger,  18  111.  203. 


8    150.]  STATUTORY     PROVISIONS.  L83 

CHAPTER    XIV. 

THE  JUDGMENT   IN   FORCIBLE  ENTRY    AND  DETAINER, 

Section    L50.   Statutory  provisions. 

151.  Judgment  unauthorized  if  description  indefinite. 

152.  Judgment  conclusive  as  to  right  of  possession. 

153.  Circuit  court  can  render  judgment  on  dismissal  of 

appeal. 

154.  The  effect  of    a    judgment   in    forcible  entry   and 

detainer. 

155.  Conclusive  only  as  to  matters  legally  determined. 

156.  Judgments  by  confession  were  heretofore  sustained. 

157.  They  are  now  invalid. 

158.  Judgments  confessed  only  for  bona  fide  debt  due. 

159.  Against  whom  judgments  may  be  entered. 

160.  Judgments  as  to  sub-tenants. 

161.  Judgments  as  regards  the  wife  of  defendant. 

;j  150.  Statutory  provisions. 

Plaintiff  Entitled    to    Whole  Premises — Tndgment — Ju- 

<  cution. 

Sec  lo.  If  it  shall  appear  on  the  trial  that  the  plaint- 
iff is  entitled  to  the  possession  of  the  whole  of  the  prem- 
ises claimed,  he  shall  have  judgment  and  execution  for 
the  possession  thereof  and  for  his  costs. 

Plaintiff  Entitled  to  Part — Tudgment. 

Sec.  14.  If  it  shall  appear  that  the  plaintiff  is  entitled 
to  the  possession  of  only  a  part  of  the  premises  claimed. 
the  judgment  and   execution   shall    be   for  that  part  only 


1*4  JUDGMENT    UNAUTHORIZED.  [§151. 

and  for  costs;   and  for  the   residue,  the  defendant   shall 
be  found  not  guilty. 

Dismissal  as  to  Part — Judgment  as  to  Part. 

Sec.  IT.  The  plaintiff  may  at  any  time  dismiss  his 
suit  as  to  any  one  or  more  of  the  defendants,  and  the 
jury  or  court  may  find  any  one  or  more  of  the  defend- 
ants guilty  and  the  others  not  guilty,  and  the  court  shall 
thereupon  render  judgment,    according  to  such  finding. 

Non  -suit. 

Sec.  16.  If  the  plaintiff  is  non-suited  or  fails  to  prove 
his  right  to  the  possession,  the  defendant  shall  have 
judgment  and  execution  for  costs. 

.^  151.  Judgment  unauthorized  if  description  indefi- 
nite.— A  judgment  in  forcible  entry  and  detainer  is  not 
authorized  unless  the  description  of  the  premises  is  suffi- 
ciently definite  to  locate  the  premises.  For  instance,  a 
complaint  set  forth  that  the  defendant  on,  etc.,  came  into 
possession  of  the  following  described  premises,  under  the 
contract  of  purchase  from  affiant,  to-wit : 

"  A  part  of  the  S.  W.  \  of  the  S.  E.  {■  in  Section  1, 
etc." 

And  judgment  was  rendered  for  the  possession  of  the 
said  land,  whereupon  the  Supreme  Court  held  : 

••  The  statute  requires  that  the  complaint  shall  particu- 
larly describe  the  lands,  tenements  or  possessions  in  ques- 
tion, and  that  the  justice  shall  keep  a  record  of  the  pro- 
ceedings had  before  him.  If  this  writ  should  be  held 
good,  then,  by  parity  of  reasoning,  a  writ  which  should 
command    the  officer  to  make  restitution  of   a  part  of  a 


§§    152,    L53.]  JUDGMENT    CONCLUSIVK.  185 

section  of  land,  without  other  description  than  such  as 
designated  the  section  of  land,  would  likewise  be  good. 
It  was  the  manifest  policy  of  the  statute  not  t<»  anthori/e 
any  such  rambling  process,  and.  upon  general  principles. 
that  in  question  was  void  for  uncertaintj7."  ' 

§  153.  Judgment  conclusive  as  to  right  of  pos- 
session.—  A  verdict  and  judgment  of  restitution  in  an 
action  of  forcible  entry  and  detainer  for  a  tract  of  land, 
part  of  a  larger  tract,  all  of  which  is  claimed  !>y  the 
defendant  under  the  same  alleged  title,  is  conclusive,  in 
a  subsequent  ejectment,  between  the  same  parties  upon 
the  question  of  right  of  possession  at  the  date  of  the 
forcible  entry,  not  only  as  to  the  tract  actually  detained 
by  the  defendant  but  as  to  the  whole." 

But  judgment  for  the  defendant  is  not  sufficient  to  bar 
the  second  suit  without  extrinsic  proof  that  the  cause  of 
action  was  the  same  in  the  prior  as  in  the  second  suit. 
Where  the  only  demand  of  possession  shown  appears  to 
have  been  made  after  the  determination  of  the  first  suit. 
the  judgment  for  the  defendant  therein  can  not  beheld 
a  bar  to  a  second  action  brought  after  such  demand.3 

The  successful  party  should  have  judgment  for  costs.4 

^  153.  Circuit  Court  can  render  judgment  on  dis- 
missal of  appeal. — Where  judgment  was  rendered  against 

1  Haskins  et'al.  v.  Haskins,  67  111.  454;  Hughes  v.  Streeter,  24  111. 
647;  Shackelford  v.  Bailey,  35  111.  387. 

•'  Bradley  v.  West,  68  Mo.  69. 

3  Davis  v.  Lennen,  24  N.  E.  Rep.  885;  Doyle  v.  Hallam,  21  Minn. 
515;  Star  v.  Stark.  1  Sawy.  275. 

4Ind.  B.  &  W.  K.  Co.  v.  Allen.  113  Ind.  308;  Walker  v.  McGill,  40 
Ark.  38;   King  v.  Lawson,  98  Mass.  309. 


186  EFFECT    OF    A    JUDGMENT.  (  §  154. 

the  defendant  by  a  justice  of  the  peace,  he  appealed  the 
case  to  the  Circuit  ( Ymrt  and  afterwards  dismissed  his 
appeal.  The  Circuit  Court  thereupon  rendered  judgment 
that  the  plaintiff  in  the  action  recover  possession  and 
awarded  a  writ  of  possession.  ( >n  objection  that  the  dis- 
missal of  the  appeal  operated  to  remand  the  cause  to  the 
justice  and  the  Circuit  Court  had  no  power  to  render  the 
judgment  it  did,  it  was  held,  that  the  Circuit  Court. 
having  jurisdiction  of  the  subject  matter  and  of  the 
parties,  had  jurisdiction  to  render  the  judgment. 
Whether  the  judgment  was  erroneous  or  not,  it  was  not 
void;  it  was  valid  and  binding  in  all  collateral  proceed- 
ings until  reversed.1 

£  154.  The  effect  of  a  judgment  in  forcible  entry 
and  detainer.— A  judgment  in  an  action  of  forcible 
entry  and  detainer  decides  and  is  conclusive  only  as  to 
matters  legally  determined  by  the  said  judgment.  The 
object  of  an  action  of  ejectment  is  to  try  the  title  to 
property,  while  in  an  action  of  forcible  entry  and  detainer 
the  immediate  right  of  possession  is  all  that  is  involved, 
and  the  title  cannot  be  inquired  into  for  any  purpose.2 

"A  judgment  in  an  action  of  forcible  entry  and 
detainer  cannot  be  pleaded  as  a  bar  to  an  action  of  eject- 
ment for  the  reason  that  the  questions  involved  in  the 
two  proceedings  are  different.  In  a  proceeding  for 
forcible  entry  and  detainer,  it  is  the  mere  naked  posses- 
sion,  in   fact,    which  is  put    in   issue   and   of  course  the 

1  Smith  v.  The  People,  99  111.  445. 

-Riverside  Co.  v.  Townshend  et  al..  120  111.  9:  Mattocks  v.  Helm. 
5-Litt.  185:  15  American  Decisions,  64:  Fish  v.  Benson,  71  Cal.  428; 
Williams  v.  Newcomb,  16  Mo.  185;  Harvie  v.  Turner.  40  Mo:  441: 
Dale  v.  Doddridge.  9  Nebr.  138. 


§§    155,    L56.]  CONCLUSIVE  ONLY,    ETC.  187 

judgment  in  such  case  cannot  be  evidence  in  an  action  of 
ejectment,  in  which  the  right  of  entry  is  the  point  in 
issue. 

"  Nor  does  the  judgment  furnish  evidence  of  aright  in 
the  plaintiff  to  recover  in  an  action  for  mesne  profits." 

§  155.  Conclusive  only  as  to  matters  legally  deter- 
mined.— "  But  such  a  judgment  is  conclusive  and  is  final 
and  binding  as  to  all  questions  actually  and  necessarily  lit- 
igated and  determined.  It  is  evidence  of  the  right  and 
extent  of  the  plaintiff's  possession  and  the  defendant  is 
estopped  from  contesting  the  same." 

k'  So,  also,  in  the  said  statutory  classes  of  actions  called 
by  this  name,  the  judgment  is  conclusive  as  to  the  exist- 
ence of  the  relation  of  landlord  and  tenant  between  the 
parties  and  as  to  the  defendant's  wrongful  holding  over. 
These  issues  can  not  be  again  tried  under  color  of  a  suit 
in  chancery."  ' 

A  judgment  determines  only  the  right  of  possession 
and  it  does  not  bar  the  tenant  from  claiming  the  rent  as 
purchaser  of  the  landlord's  title  under  ;i  trust  deed." 

^  156.  Judgments  by  confession  were  heretofore 
sustained. — It  was  heretofore  held  in  this  State,  that  a 
lease  containing  a  warrant  of  attorney  to  confess  judg- 
ment in  forcible  detainer  is  sufficient  to  authorize  such 
confession,  if  duly  executed  by  the  lessee,  although 
executed  in  the  name  of  the  lessor  by  his  agent,  without 
proper  authority." 

•Casey  v.  McFalls,  3  Sheed,   115;  Mitchell  V.   Davis,  23  Cal.  381; 
Norwood  v.  Kirby,  70  Ala.  397;  Black  on  Judgments,  663. 
8  (  arson  et  al.  v.  Crogler,  9  111.  App.  83. 
3  Johnson  v.  Crane  et  al.,  22  111.  App.  366. 


L88  TIIKY     AttE     M'W      INVALID.  [§157. 

But  the  later  and  correct  view  regarding  the  entry  of 
judgments  by  confession  is,  that  the  practice  is  unauthor- 
ized ;  the  doctrine  being,  that  a  judgment  may  be  entered 
by  filing  a  cognovit  for  rent  due,  on  a  power  given  in  a 
lease.1 

But  the  court  had  no  power  to  cuter  the  judgment  by 
confession,  in  this  form  of  proceeding,  on  the  warrant  of 
attorney  contained  in  the  lease,  and  the  judgment  is 
therefore  coram  nonjudia  and  void.'"' 

;j  157.  They  are  now  invalid The  practice  of  enter- 
ing judgment  by  confession  upon  a  warrant  of  attorney 
without  process  in  actions  for  tort,  is  not  allowed  by  the 
common  law;   it  is  only  allowed  in  respect  to  debts.'' 

The  entry  of  a  judgment  by  confession  upon  warrant 
of  attorney  contained  in  a  lease  is  impliedly  prohibited 
by  the  particular  mode  of  proceeding  prescribed  by  the 
forcible  entry  and  detainer  act.1 

A  judgment  entered  by  confession  under  a  power  of 
attorney  and  cognovit  in  a  forcible  detainer  suit  is 
unauthorized  by  law  and  void.  The  court  acquires  no 
jurisdiction  of  the  person  of  the  defendant  by  the  tiling 
of  the  cognovit.  The  confession  of  judgment  upon  a 
warrant  of  attorney  in  an  action  of  forcible  detainer  in  a 
court  of  record  is  as  irregular  and  unauthorized  as  it 
would  be  in  a  justice  court.  Such  court  of  record  does 
not  proceed  in  forcible  detainer  by  virtue  of  its  power  as 
a  court  of  general  jurisdiction,  but  derives  its  authority 

1  Little  et  at,  v.  Dyer!  35  111.  App.  85. 
8  Wilier  v.  French,  27  111.  App.  7<i. 
s  French  v.  Wilier.  126111.  611. 
4  Wilier  v.  French.  27  111.  App.  7li. 


§§    L58,    L59.]  JUDGMENT    CONFESSED.  L89 

wholly  from  the  statute  and  in  such  proceeding  is  to  be 
treated  as  a  court  of  special  and  limited  jurisdiction.1 

§158.  Judgment  confessed  only  for  bona  fide  debt 

due The  entry  of  a  judgment    by  confession   upon  a 

warrant  of  attorney  contained  in  a  lease  is  impliedly  pro- 
hibited by  the  particular  mode  of  proceeding  prescribed 
by  the  forcible  entry  and  detainer  act.  Causes  for  the 
recovery  of  possession  of  real  estate  under  the  forcible 
entry  and  detainer  act  are  based  not  upon  a  debt  but  a 
tort.  The  gist  of  the  action  is  either  a  forcible  entry  or 
wrongful  detainer.  The  plea  is  not  guilty.  The  statute 
authorizing  confessions  of  judgment  in  this  State  reads: 
!'  Any  person  for  a  debt  bonajide  due  may  confess  judg- 
ment by  himself  or  attorney  duly  authorized,  without 
process;"  the  statute  limiting  this  right  to  cases  of  a 
debt.  The  law-making  power  has  never  given  sanction 
to  confession  of  judgment  in  forcible  entry  and  detainer 
cases;  public  policy  is  against  it  and  courts  should  not 
sanction  such  an  innovation."' 

*  151).  Against  whom  judgments  may  be  entered.— 

Sec.  15,  chap.  57,  of  the  Revised  Statutes,  authorizes 
the  bringing  of  forcible  detainer  bv  the  landlord  against 
the  lessee,  with  others  in  whom  the  actual  possession  is 
divided,  at  the  commencement  of  the  suit.  Judgment 
may  be  entered  against  the  lessee,  when  sued,  with  his 
sub-tenant,  though  he  is  out  of  the  actual  possession. 

1  French  v.  Wilier,  126  HI.  Oil. 
-Burns  v.  Nash,  23  111.  App.  552. 
3Espenetal.  v.  Hinchliffe,  131  111.  468. 


190  JUDGMENT    AwS    TO    SUB-TENANTS.  [  §  1'60. 

A  judgment  against  a  tenant  is  conclusive  against  the 
landlord  if  the  latter  interposed  in  aid  of  the  tenant  in 
his  defense,  or  if  the  landlord  had  notice  of  the  pendency 
of  the  suit  and  full  opportunity  of  making  a  defense 
thereto.1 

Where  a  landlord  recovers  a  judgment  in  an  action  of 
forcible  entry  and  detainer  against  his  tenant,  a  sub-ten- 
ant who  was  not  a  party  to  the  judgment  cannot  be  put 
out  of  his  possession  under  the  writ  unless  he  entered 
pendente  lite 

§  160.  Judgment  as  to  sub-tenants. — A  sub-tenant  is, 
by  the  express  provision  of  the  statute,  liable  to  this 
action,  and  it  has  been  so  held  by  the  court." 

A  writ  of  possession  can  only  go  against  the  party  to 
the  suit  or  against  those  who  came  into  possession  under 
him  since  the  commencement  of  the  suit.3 

AVhere  there  are  several  defendants  and  a  portion  of 
them  are  not  proven  to  be  in  possession,  the  judgment 
against  all  is  erroneous,  as  the  judgment  is  entire  and 
indivisible. ' 

In  Kansas,  the  officer  has  no  right  to  remove  a  party 
who  does  not  hold  under  the  defendant  in  the  writ. 

The  objection,  that  the  wife  ought  to  have  been 
brought  into  the  Circuit  Court  on  appeal,  is  not  good. 
She  was  no  party  to  the  judgment  before  the  justice ;  the 

'Thomsen  et  al.  v.  McCormick,  136  III.  135. 
-  Leindecker  et  al.  v.  Waldron,  52  III.  283. 
3  Brush  v.  Fowler,  36  111.  53. 
4Godard  et  al.  v.  Liebermann,  17  111.  App.  366. 
5  Wallace  v.  Hall,  22  Kas.  271. 


8    161.1  JUDGMENTS    As    REGARDS    THE    WIFE.  193 

judgment  of  the  justice  against    the   husband   alone  dis- 
posed of  the  complaint  against  her.1 

Judgment  against  the  husband  alone  is  sufficient  to 
oust  both  husband  and  wife,  although  summons  were 
served  on  both.2 

,^  161.  Judgments  as  regards  the  wife  of  defendant. 
—Where  the  wife  was  entitled  to  possession  of  the  prem- 
ises in  ()  nest  ion  and  held  the  same  as  heir,  in  common 
with  other  heirs  of  the  former  owner,  the  possession  of 
her  husband,  if  any,  was  in  the  right  of  his  wife  and  the 
action  should  have  been  against  both  husband  and  wife; 
and  the  result  of  a  judgment  against  him  alone  would  be 
the  separation  of  husband  and  wife,  or  the  ousting  of  the 
one  who  had  the  right  of  possession,  which  in  either  case 
could  not  be  done." 

In  a  case  where  the  wife  claimed  to  own  the  property, 
the  court  said  : 

The  house  was  the  dwelling  house  of  the  husband  and 
not  that  of  his  wife,  who  was  but  a  member  of  a  family 
of  which  he  was  the  head.  The  possession  of  the  differ- 
ent members  of  the  family  was  dependent  on  his  rights, 
so  that  when  the  owner  of  the  land  obtained  a  judgment 
against  him  in  forcible  detainer  for  restitution  of  the 
premises,  that  house  ceased  to  be  his  dwelling  house: 
and  that  by  termination  of  his  rights,  all  incidental 
rights  of  the  wife  terminated  also.4 

1  Bell  v.  Bruhn,  30  111.  App.  300;  Fabbri  v.  Cunio,  1  111.  App.  240; 
Wells  v.  Reynolds,  3  Scam.  111.  191;  Wilderman  et  al.  v.  Sandusky, 
15  111.  59. 

-  Bell  v.  Bruhn,  30  III.  App.  300. 

3Cofoid  v.  Bishop,  11  111.  App.  117. 

4Ennis  v.  Lamb,  10  111.  App.  447. 


192         JUDGMENT  AS  REGARDS  THE  WIFE.      [§  161. 

Where  the  wife  was  in  the  house  of  her  husband  by 
virtue  alone  of  the  marriage  relation,  after  a  decree  of 
divorce,  it  was  held  that  her  rights  to  any  and  all  parts 
of  the  house  will  cease;  and  if  she  continues  to  remain 
thereafter  against  the  will  of  her  husband,  she  will  be  a 
mere  intruder  and  is  not  a  tenant  at  sufferance,  nor 
entitled  to  notice  to  quit.1 

'Brown  v.  Smith,  S3  111.  291. 


§§162,    L6a.]  DEFINITION    OF    TERM.  193 


CHAPTER    XV. 

RESTITUTION. 

Section  162.  Definition  of  term. 

163.  Restitution — Concurrent  remedies. 

164.  Jury  must  sign  verdict. 

165.  Duty  of  officer  in  executing  the  writ. 

166.  Unknown  sub-tenants. 

167.  Circuit  court  on  appeal  may  remand  case  to  justice 

to  issue  writ. 

^  162.    Definition    of    term Restitution    originally 

was  placing  back  or  restoring  articles  which  have  been 
lost  by  jettison;  this  is  done  where  the  remainder  of  the 
cargo  has  been  saved  at  the  general  charge  of  the  owners 
of  the  cargo,  but  when  the  remainder  of  the  goods  are 
afterwards  lost,  there  is  not  any  restitution.  This  was 
the  maritime  law  signification  of  restitution,  but  in  mod- 
ern practice  and  in  modern  law  it  means  the  return  of 
something  to  the  owner  of  it  or  to  the  person  entitled  to 
it.  So  in  the  use  of  the  term  in  regard  to  forcible  entry 
and  detainer  it  means  the  restoring-  or  the  returning  of 
the  possession  of  the  premises  in  question  to  the  party 
entitled  to  it. 

§  163.    Restitution  —  Concurrent  remedies.  —  The 

statute  provides : 

"If  any  party  shall   feel  aggrieved  by  the  verdict  of 

the  jury   or  decision   of  the   court,  upon  any  trial   had 

under   this  act,  such    party  may   have   an   appeal,  to   be 

taken  to  the  same  courts,  in   the  same  manner  and  tried 

13 


104  .UKY    MUST    SIGN    VERDICT.  |    §§    1  64,   165. 

in  the  same  vyay  as  appeals  are  taken  and  tried  in  other 
oases.  Provided,  the  appeal  is  prayed  and  bond  is  filed 
within  five  days  from  the  rendition  of  the  judgment,  and 
no  writ  of  restitution,  shall  be  issued  in  any  case  until 
the  expiration  of  said  five  days." 

A  person  entitled  to  the  possession  of  lands  sold  under 
a  judgment  or  decree,  having  obtained  his  deed,  is 
entitled  to  have  two  concurrent  remedies:  (1)  a  writ  of 
assistance  issuing  from  the  court  rendering  the  judgment 
or  decree,  or  (2)  an  action  of  forcible  entry  and  detainer 
under  the  statute.1 

Awarding  a  writ  of  restitution  upon  the  dismissal  of 
an  appeal  in  a  case  of  forcible  entry  and  detainer  is  not 
error." 

In  executing  the  writ  of  possession  the  officer  may 
enter  the  premises,  if  necessary,  for  the  purpose  of  re- 
moving the  defendant  and  his  property,  but  in  doing  so, 
if  he  uses  unnecessary  force  and  causes  unnecessary  (lam- 
age  he  will  be  liable  for  his  misconduct." 

§  164.  Jury  must  sign  verdict If  the  defendant  is 

found  guilty  upon  the  trial,  the  judge  will  award  restitu- 
tion of  the  premises  which  have  been  forcibly  entered  or 
forcibly  held,  with  the  costs  and  expenses  of  the  proceed- 
ing, and  the  sheriff  or  constable  is  thereupon  directed  to 
cause  the  complainant  to  be  put  in  full  possession  of  the 
premises.  In  the  states  of  Illinois  and  Indiana,  all  the 
jury  are  required  to  sign  the  verdict." 

§  165.  Duty  of  officer  in  executing  writ. — In  execut- 

1  Brackensieck  v.  Vahle  et  al.,  48  111.  App.  312. 

2  Harlan  v.  Scott,  2  Scammon  (111.),  65. 

3  Miller  v.  White,  80"  111.  580. 

4  Bloom  v.  Goodner,  1  111.  63:  Test  v.  Devers,  2  Blackf.  80. 


§166.]  UNKNOWN    SUB-TENANTS.  195 

ing  the  writ  of  possession,  the  officer  may  enter  the 
premises  forcibly,  if  necessary,  and  having  entered,  it  is 
his  duty  to  remove  all  property  as  well  as  the  person  of 
the  defendant,  doing  as  little  damage  and  using  as  little 
force  as  possible  in  order  to  effect  that  purpose. 

§  166.  Unknown  subtenants. — Where  a  tenant  of  the 
demised  building  secretly  sub-lets  the  same  to  another 
person  living  with  him,  without  the  knowledge  of  the 
landlord,  and  both  occupy  the  premises  as  before,  and 
such  sub-lessee,  when  examined  as  a  witness  on  the  trial 
of  an  action  of  forcible  entry  and  detainer,  against  the 
original  lessee,  makes  no  claim  to  the  property,  the  sub- 
tenant, after  judgment  for  possession,  will  not  be  allowed 
to  interfere  and  set  up  her  rights  there  for  the  first  time, 
but  will  be  bound  by  the  judgment.1 

Appellee  claimed  to  be  the  owner  of  the  house  situated 
on  appellant's  land  and  appellee's  husband  took  from  the 
appellant  a  lease,  and  judgment  of  ouster  was  afterwards 
rendered  against  him  as  tenant  of  the  appellant;  held, 
that  he  must  be  considered  as  head  of  the  family  and  a 
warrant  of  restitution  was  properly  served  against  him 
and  all  occupying  with  him.  And,  notwithstanding  that 
appellee  might  have  been  the  owner  of  the  house,  she 
could  not  retain  possession  of  appellant's  land  in  defiance 
of  the  writ  of  restitution." 

In  the  absence  of  any  showing  to  the  contrary,  one 
not  especially  named  in  the  writ  of  possession,  but  in  the 
possession  of  the  premises  when  the  action  of  forcible 

1  Miller  et  al.  v.  White,  80  111.  580. 

-  Ennis  v.  Lamb,  10  111.  App.  447:    Johnson  v.    Fullerton,  44   Pa. 
St.  466. 


L96  CIRCUIT    COUET    MAY    REMAND.  [•§    167. 

entry  was  brought,  will  be  presumed  to  have  occupied 
the  land  pendentt  ///''and  be  a  proper  subject  for  removal 
under  the  writ.1 

§  167.  Circuit  Court  on  appeal  may  remand  case  to 
justice  to  issue  writ. — Where  the  Circuit  Court  affirms 
the  judgment  of  the  justice  of  the  peace,  it  is  not  error 
to  remand  the  cause  to  the  justice  to  issue  the  writ  of 
restitution.2 

Where  one  co-partner  dispossessed  another,  on  a  finding 
in  an  action  for  forcible  entry  and  detainer  in  favor  of 
the  latter,  he  can  be  restored  to  his  joint  possession  by 
the  writ  of  restitution.3 

1  Thomasson  v.  White,  6  Baxter  (Tenn.),  148. 

'  Murry  v.  Harper,  3  Ala.  374. 

3 Robertson  v.  Robertson,  2  B.  Mon.  (K'y.)  235. 


§§168,    1  »'>'.'.  |  TENANT    MA'S     A.BANDON.  1  !>7 


CHAPTER    XVI. 

THE   TENANTS    REMEDIES. 

SECTION  168.  Tenant  may  abandon  premises  for  landlord's  fault. 

169.  May  sue  for  breach  of  contract. 

170.  No  relief  against  rent  except  by  stipulation  in  lease. 

171.  Defenses  available  to  the  tenant. 

172.  Test  questions  for  trial. 

173.  Tenant's  right  to  abandon  premises. 

§  108.  Tenant  may  abandon  premises  for  landlord's 

fault. — Where  a  landlord  has  agreedjm  his  lease  to  repair 
the  demised  premises  and  does  not  do  so,  the  tenant  has 
several  remedies;   he  may  abandon  the  premises.1 

§  169.  May  sue  for  breach  of  contract. — He  may  sue 

the  landlord  for  damages  for  a  breach  of  his  covenant  to 
repair. "~ 

Or  the  tenant  may  make  the  repairs  agreed  to  be  made 
by  the  landlord  and  deduct  the  cost  of  the  same  from  the 
rent.3 

He  may  abandon  the  premises  if.  by  reason  of  the 
failure  of  the  landlord  to  make  repairs,  ;is  agreed,  the 
premises  are  rendered  untenantable.4 

Rent  in  advance  cannot  be  recovered  in  the  absence  of 
an  agreement  to  that  effect.5 

1  Bissell  v.  Lloyd  et  al.,  100  111.  214. 
Block  v.  Ebner,  54  Ind.  544. 

3  Wright  v.  Lattin  et  al.,  38  111.  293. 

4  Prescott  v.  Overstayer,  85  Pa.  St.  534. 
6  Heissler  et  al.  v.  Stose,  33  111.  App.  39. 


198  X<>    RELIEF    AGAINST    RENT.        [  §§  170,    171. 

The  original  landlord  cannot  maintain  an  action  against 
a  sub-tenant  to  recover  rent  due  from  the  original  lessee.1 

Asa  general  rule,  a  tenant  has  no  relief  against  an 
express  covenant  to  pay  rent,  unless  he  has  protected 
himself  by  stipulation  in  the  lease.2 

§  170.  No  relief  against  rent  except  by  stipulation 
in  the  lease. — In  the  absence  of  a  stipulation  in  the  lease 
to  the  contrary,  a  tenant  is  bound  to  pay  the  stipulated 
rent,  although  the  building  on  the  premises  is  consumed 
by  fire  when  in  his  possession.3 

A  clause  in  a  lease,  that  a  re-entry  may  be  made  with- 
out the  same  "  working  a  forfeiture  of  the  rent  to  be 
paid,"  refers  to  the  rents  to  be  paid  after  the  re-entry 
by  the  lessor,  and  the  tenant  is  liable  still  to  pay  the  rent 
for  the  premises ;  yet  as  against  the  same,  he  is  entitled 
to  credit  for  the  rent  received  by  the  lessor  after  such 
re-entry. ' 

§  171.  Defenses  available  to  the  tenant — The  only 

rule  to  be  followed  in  defending  a  suit  for  forcible  entry 
and  detainer,  is  to  examine  the  requirements  of  the  statute 
and  the  rules  of  our  practice,  step  by  step,  and  see  if 
they  have  been  complied  with  in  the  case  at  bar. 

As  to  the  summons,  it  makes  no  difference  whether  it 
is  defective  or  not,  if  the  defendant  appears  in  court  and 
defends  the  suit.  In  such  case  he  can  not  complain  that 
the  summons  was  defective. 

1  Sexton  v.  Chicago  Storage  Co.  et  al.,  30  Hi.  App.  95. 

-Smith  et  al.  v.  McLean  et  al..  22  III.  App.  451. 

3 Stow  v.  Russell  et  al.,  36  111.  18. 

4Grommes  et  al.  v.  St.  Paul  Trust  Co.  et  al. .  47  III.  App.  00s. 

5 Seem  v.  McLees,  24  111.  193;  Fink  et  al.  v.  Disbrow,  69  111.  7(5. 


§   172.]  TE8T    QUESTIONS.  L99 

§  172.  Test  questions. —  JJut  many  questions  arise 
which  deserve  most  careful  examination  on  part  of  the 
defendants — for  example  : 

Has  the  suit  been  commenced  by  the  party  entitled  to 
the  possession  ? 

Has  the  suit  been  commenced  against  one  tenant  when 
the  letting  was  to  two  or  more? 

Has  the  suit  been  commenced  by  a  tenant  in  common 
against  his  co-tenant,  when  the  plaintiff  is  not  entitled 
to  the  exclusive  possession  of  the  premises? 

Did  the  relation  of  landlord  and  tenant  exist  between 
the  parties?  If  so,  has  that  relation  been  terminated, 
and  when  and   how? 

Did  the  plaintiff,  prior  to  the  entry  charged,  disclaim 
to  defendant  all  interest  in  the  premises?  Is  the  defend- 
ant, in  fact,  on  the  premises? 

In  cases  where  demand  of  possession  is  required,  was 
the  demand  made  for  possession  of  the  premises,  and  was 
that  demand  what  the  law  requires?  Was  it  served  as 
the  statute  provides? 

And  on  this  question  special  attention  is  called  to  the 
case  of  Doran  v.  Gillespie,  ~A  111.  366,  where  the  doc- 
trine is  fully  laid  down,  that  the  defendant  is  not  guilty 
in  this  action  until  the  demand  has  been  made  as  required  ; 
and  defects  in  the  demand  are  not  waived  by  the  defend- 
ants appearing  and  going  to  trial,  although  the  defects  in 
the  summons  may  be  thus  waived. 

Again,  have  the  premises  been  described  with  reason- 
able certainty  in  the  complaint?  Has  the  proof  on  the 
trial  sustained  the  description  given  in  the  complaint? 


200  TEST    QUESTIONS.  [§172. 

Has  the  description  in  the  complaint  included  the  entire 
premises  in  question? 

Do  the  premises  described  in  the  complaint  correspond 
with  those  described  in  the  demand,  in  cases  where  demand 
was  necessary? 

Such  inquiries  and  others  suggested  by  the  facts  of  each 
I  (articular  case  arising  under  the  various  clauses  of  the 
statute,  will  lead  to  the  detection  of  weaknesses  in  the 
plaintiff's  case,  that  will  prove  fatal  to  it  in  many 
instances. 

In  an  action  of  forcible  entry  and  detainer,  the  defend- 
ant may  prove,  that  prior  to  the  entry  the  plaintiff  dis- 
claimed to  him  all  interest  in  the  premises,  which,  if 
proven,  constitutes  a  defense  to  the  action.1 

Estoppels  in  pais,  affecting  permanent  interest  in  land, 
can  only  be  made  available  in  courts  of  justice  and  can- 
not be  used  as  a  defense  in  an  action  of  forcible  entry  and 
detainer.2 

Increased  Hint — Tenant's  Duty. 

Where  a  tenant  was  notified  by  the  landlord  before 
the  expiration  of  his  term  that  he  could  have  the  premises 
no  longer,  unless  he  took  the  entire  premises  and  paid  his 
certain  price  for  the  same,  as  rent,  and  the  tenant  held 
over  and  occasionally  did  use  the  entire  premises,  hut 
objected  to  the  new  terms  sought  to  be  imposed;  he 
became  liable  to  pay  for  the  whole  premises,  it  being 
presumed  that  he  finally  acceded  to  the  new  terms 
imposed." 

1  Dudley  et  al.  v.  Lee,  39  111.  339. 

-  B  &  O.  &  ( .'.  R.  R.  Co   v.  111.  Cent.  R.  R.  Co.,  137  111.  9. 

3  Griffin  v.  Knisely.  75  111.  411. 


I    173.]  RIGHT    TO    ABANDON     PREMISES.  203 

A  notice  by  the  landlord  to  the  tenant,  that  it'  he  con- 
tinues to  occupy  beyond  the  present  term  he  must  pay 
increased  rent,  will  not  bind  the  tenant,  though  he  holds 
over,  unless  he  consent  to  the  increased  rent. 

Where  a  tenant  has  received  notice  that  he  must  pay 
increased  rent  if  he  remains  in  possession,  and  expressly 
declines  to  pay  said  increase  and  holds  over,  the  remedy 
of  the  landlord  is  to  oust  him  from  possession.  If  he 
permits  him  to  remain,  the  tenant  still  refusing  to  pay 
the  increased  rent,  he  can  recover  only  the  rent  as  based 
on  the  former  lease. 

Where  a  landlord  gives  notice  to  his  tenant,  that  if  he 
occupies  beyond  the  present  term  he  will  be  required  to 
pay  an  increased  rent,  the  silence  of  the  tenant  after 
receiving  such  notice  will  be  construed  into  an  assent  or 
agreement  to  occupy  at  the  increased  rent.  But  where 
the  tenant  refused  to  assent  to  the  increase,  no  such  pre- 
sumption arises.1 

§  173.  Tenant's  right  to  abandon  premises. —  But  if 

the  tenant,  having  the  right  to  abandon  the  premises, 
remains  in  possession  for  any  considerable  time  after  his 
knowledge  of  the  landlord's  failure  to  repair,  he  thereby 
waives  his  right  to  abandon  the  lease.2 

If  the  landlord  agrees  to  make  repairs  before  the  pos- 
session is  to  be  given  to  the  tenant,  the  making  of  such 
repairs  is  a  condition  precedent  and  an  entry  by  the  ten- 
ant before  the  making  thereof  is  not  a  waiver;  and  the 
tenant's  entry  before  the  stipulated  day  is  no  waiver  on 

1  Galloway  v.  Kirby,  9  111.  App.  501. 

-  Limn  v.  Gage,  37  111.  19;  Wright  v.  Lattin  et  al. ,  38  111.  293;  Keer- 
nari  v   Germain.  61  Miss.  498. 


202  BIGHT    TO    A.B4ND0M    PREMISES.  [§173. 

his  part,  and   rent  is  not  recoverable  if  the  tenant  elects 
to  abandon  the  contract.1 

Where  a  lessor  rents  a  room  in  a  building  for  a  store- 
room, undertaking  to  keep  the  building,  except  the  par- 
ticular room,  in  proper  repair,  and  neglects  to  repair,  so 
that  the  roof  of  the  building  leaks  so  badly  as  to  render 
the  store-room  unfit  for  the  use  for  which  it  is  rented. 
and  the  lessee  leaves  the  same  on  that  account,  the  lessor 
will  not  be  entitled  to  recover  rent  for  the  store-room  for 
the  time  after  it  is  abandoned. - 

1  Stohecker  v.  Barnes.  21  Ga.  430. 

2  Bissell  v.  Lloyd  et  al..  100  III.  214. 


174.  J  TIME    WHEK     REPAIRS    MAUI.  203 


CHAPTEE    XVII. 

REPAIRS. 

SECTION  174.  Time  when  repairs  made. 

175.  The  common  law  rule  as  to  repairs. 

170.   The  landlord's  duties  regarding  repairs. 

177.  What  repairs  made  by  tenant. 

ITs.  Damages  for  personal  injury  on  account  of  premises 

being  dangerous. 
17!).  Damages  by  water. 

180.  Defective  plumbing  ami  the  results  of  sewer  gas. 

Use  and  Occupation. 

181.  When  tenants  liable  for  use  and  occupation. 

182.  Actions  for  rent  and  for  use  and  occupation. 

183.  Set-off  and  recoupment. 

184.  Recoupment  against  rent. 

185.  Set-off — when  allowed. 

186.  Damages. 

1S7.   Damages  for  failing  to  repair. 
lss.   Re-entry  by  landlord. 

§  174.  Time  when  repairs  made. —  When  a  landlord 
covenants  to  make  repairs  and  no  time  is  specified  in 
which  to  make  them,  he  must  make  them  within  a  rea- 
sonable time,  so  that  the  lessee  may  have  the  benefit  of 
them.1 

The  law  implies,  in  a  lease,  covenants  against  para- 
mount title  and  against  such  acts  of  the  landlord  as  des- 
troy the  beneficial  enjoyment  of  the  premises.2 

h    is  the  duly  of  the  tenant,  where  the  landlord    lias 

Lunn  v.  Gage,  :57  111.  19. 
-  Wade  v.  Halligan,  16  111.  507. 


204  RULE    AS    TO    REPAIRS.  |   §§  175,    17G. 

covenanted  to  repair  the  buildings  upon  the  premises,  to 
notify  him  of  the  need  of  such  repair.1 

But  no  notice  is  required  if  the  landlord  covenants  to 
repair  at  or  before  a  certain  time.2 

If  the  lessor  covenants  to  repair  before  the  commence- 
ment of  the  term,  the  making  of  such  repairs  is  a  con- 
dition precedent  to  the  payment  of  rent.3 

§  175.   The  common  law  rule  as  to  repairs. —  The 

lessee  was  bound,  at  common  law,  to  make,  during  his 
term,  what  are  called  "tenantable  repairs,''  not  "sub- 
stantial, lasting  or  general  repairs,  but  only  such  ordinary 
repairs  as  were  necessary  to  prevent  waste  and  decay  of 
the  premises.  If  a  window  in  a  dwelling  should  blow 
in,  the  tenant  could  not  permit  it  to  remain  out,  and  the 
storms  to  beat  in  and  greatly  injure  the  premises,  without 
liability  for  permissive  waste ;  and  if  a  shingle  or  board 
on  the  roof  should  blow  oh"  or  become  out  of  repair,  the 
tenant  could  not  permit  the  water,  in  time  of  rain,  to 
flood  the  premises,  and  thus  injure  them,  without  a  simi- 
lar liability.  He  being  present,  a  slight  effort  and 
expense  on  his  part  could  save  a  great  loss;  and  hence 
the  law  justly  casts  the  burden  upon  him.1* 

The  duties  in  respect  to  repairing  may  be  regulated  by 
express  agreement,  or  in  the  absence  of  agreement  will 
be  in  accordance  with  what  the  law  implies  from  the 
relation  of  landlord  and  tenant. 

§  176.  Landlord's  duties  regarding  repairs.  —  A 
landlord  does  not  insure  that  nothing  exists  touching  the 

:  Wolcott  v.  Sullivan,  <i  Paiffe  (X.  Y.).  117. 

2  Gerzebech  v.  Lord,  33  X.  J.  L.  240. 

3  Hickmar  v.  Ravi,  55  Ind.  551. 


£  176.  |  DUTIES    REGARDING     REPAIRS.  205 

premises  in  question  that  will  interfere  with  the  health 
or  comfort  of  his  tenant,  nor  is  lie  bound  to  repair,  unless 
the  lease  so  provides.1 

A  landlord  is  not  responsible  for  personal  injuries 
caused  by  a  neglect  to  repair,  when  the  defective  con- 
dition of  the  premises  arises  during  the  tenancy. 

A  tenant  bound  to  restore  premises  in  good  order, 
"loss  by  fire,  inevitable  accident  or  ordinary  wear 
excepted,''  is  obliged  to  repair  a  window  broken  by  a 
stone  accidentally  kicked  by  a  passing  team. 

A  landlord  is  liable  to  his  tenant  in  possession  for 
injuries  caused  by  him  through  negligence  in  making- 
repairs.1 

Where  the  lessee  of  a  store-room  in  a  building  under- 
takes to  make  all  needed  repairs  and  alterations  in  and 
about  such  room,  the  lessor,  by  implication,  will  be 
bound  to  keep  the  residue  of  the  building  in  repair,  so  as 
to  protect  such  room/' 

The  legal  effect  of  a,  covenant  in  a  lease  by  the  lessee 
to  keep  the  demised  building  in  repair  at  his  own  expense 
and  to  deliver  it  up  at  the  end  of  his  term  in  as  good 
order  and  condition  as  when  he  received  it,  without  any 
exception  of  loss  lyy  fire,  is,  that  in  case  the  building  is 
burned,  the  lessee  will  rebuild  the  same,  and  such  loss 
will  not  even  stop  the  rent  until  the  building  is  replaced.0 

A  lease  stipulated,  that  repairs  upon  the  premises  were 

1  McCoull  v.  Herzberg,  33  111.  App.  542. 

2  Borman  v.  Sandgren,  37  111.  App.  160. 

3  Peck  v.  Scoville  Mfg.  Co.,  43  111.  App.  360. 
••Mitchell  v.  Plaut,  31  111.  App.  148. 
5Bissell  v.  Lloyd  et  al.,  100  111.  214. 

6  Ely  v.  Ely  etal.,  80  111.  532. 


206  DUTIES    REGARDING    REPAIRS.  [§176. 

to  be  made  for  a  certain  amount,  which  were  to  be  paid 
for  by  the  lessee  and  to  be  allowed  on  the  accruing  rent. 
The  mechanic  who  made  the  repairs  performed  work 
above  the  amount  stipulated  in  the  lease,  but  upon  the 
request  of  the  lessee.  Held:  that  the  lessee  was  liable 
for  such  excess.' 

A  lease  for  a  portion  of  a  building  leaves  the  responsi- 
bility for  what  is  not  demised  upon  the  landlord." 

Where  a  landlord  covenants  to  repair  before  the  term 
commences,  but  the  tenant  enters  upon  the  term  and 
receives  possession  before  such  covenant  is  performed,  he 
cannot  abandon  the  lease  and  refuse  to  pay  the  rent  for 
the  breach  of  any  other  covenant  than  for  quiet  enjoy- 
ment.3 

Where  a  landlord  covenants  in  a  lease  to  keep  the  roof 
in  good  repair,  the  tenant  in  an  action  against  him  should 
have  been  permitted  to  show  damages  sustained  by  the 
leaking  condition  of  the  roof,  and  lie  would  be  entitled 
to  recover  in  said  action  all  legitimate  damages  sustained 
by  breach  of  the  covenant  to  repair.  His  right  to  recover 
substantial  damages  is  not  affected  by  the  fact  that  the 
tenant  had  sublet  the  premises  to  one  who  had  paid  him 
the  same  rent  agreed  for  in  the  lease.4 

Where  a  lease  binds  the  lessee  to  pay  rent  during  the 
term,  the  rent  will  not  stop  while  the  premises  are  receiv- 
ing repairs,  nor  is  the  tenant  relieved  from  paying  rent 
because  the  premises  are  injured  by  accident  during  the 
term.5 

1  Benjamin  v.  Heeney  et  al.,  51  111.  492. 
Payne  et  al.  v.  Irvin.  44  111   App.  105. 

3  Wright  v.  Lattin  et  al.,  38  111.  293. 

4  Watson  et  al.  v.  Hooton,  Exr..  4  111.  App   294. 

5  Peck  v.  Ledwidge,  25  111.  109. 


§177,178.]  REPAIRS    MADE    KV    TENANT.  207 

§  177.  What  repairs  made  by  tenant.— As  a  general 
rule,  the  occupant  of  premises  is  responsible  for  injuries 
received  in  consequence  of  a  failure  to  keep  them  in 
repair. ' 

Unless  then'  was  an  express  agreement  on  the  part 
of  the  landlord  to  repair,  the  tenant  must  take  the 
premises  as  he  finds  them  and  he  cannot  recover  for 
repairs  or  damages  sustained  by  reason  of  the  want  of 
repair." 

An  agreement  by  the  landlord  to  pay  the  tenant  for 
repairs  will  not  stop  the  running  of  the  rent  while  the 
repairs  are  being  made.3 

Where  the  landlord,  in  violation  of  his  covenant,  fails 
to  make  repairs,  the  tenant  may  make  them  himself, 
charging  the  expense  against  the  landlord,  or  sue  for 
damages  for  breach  of  covenant.4 

^  178.  Damages  for  personal  injury  on  account  of 
premises  being  dangerous. — Where  a  landlord  rents 
premises  in  a  ruined  and  dangerous  condition  and  the 
injury  results  therefrom  to  a  third  person,  the  landlord  is 
liable.  Suffering  the  premises  to  be  constructed  or  to 
become  in  a  dangerous  condition  is  a  nuisance,  and  if  the 
landlord  demise  the  premises  in  that  condition  lie  is  liable 
for  injuries  arising  therefrom.5 

As  a  general  rule  is,  as  stated,  that  the  tenant  is 
responsible  for  injuries  arising  from  a  failure  to  keep  the 

■TheC.  C   Stove  Co   v.  Wheeler,  14  111.  App.  112. 
-  Smith  v.  Kinkaid,  1  111.  App.  620. 

3  Peck  v.  Ledwidge.  25  111.  109. 

4  McFarlane  v.  Piersou,  21  111.  App.  566. 
Reichenbaeher  v.  Pahmeyer,  8  111  App.  217. 


208  DAMAGES — DANGEROUS    PREMISES.  [  §  178. 

premises  in  a  proper  state  of  repair;  bat  when  the 
premises  are  let  with  a  nuisance  upon  them,  by  means  of 
which  the  injur)'  complained  of  is  received,  the  owner  or 
landlord  will  be  liable.1 

The  tenant  in  possession,  and  not  the  landlord,  is 
responsible  to  third  persons  for  injuries  occasioned  by 
failure  to  keep  the  demised  premises  in  repair,  unless  the 
owner  has  agreed  to  keep  them  in  repair,  or  when  the 
premises  were  let  with  the  alleged  nuisance  upon  them, 
in  which  case  the  owner,  and  not  the  tenant,  is  respon- 
sible for  injuries  caused  by  the  nuisance.'2 

The  landlord,  however,  is  liable  where  he  has  expressly 
agreed  to  keep  the  premises  in  repair  and  where  the 
premises  are  let  with  a  nuisance  upon  them.3 

To  the  rule  that  the  occupant  is  liable  for  injuries, 
there  are  two  exceptions :  Firstly,  where  the  landlord, 
by  express  covenant,  agrees  with  the  tenant  to  keep  the 
premises  in  repair;  and  secondly,  where  the  premises  are 
let  with  a  nuisance  upon  them  which  caused  the  injury.4 

The  owner  of  property  is  not  liable  for  injuries  result- 
ing from  an  improper  use  by  a  stranger  of  the  property, 
acting  without  his  authority.5 

If  a  tenant  uses  the  premises  in  such  a  manner  as  to 
create  a  nuisance,  the  landlord  has  a  right  to  abate  it.G 

To  entitle  a  tenant  to  come  into  a  court  of  equity  in 
the  first  instance,  for  equitable  relief  against  a  private 

1  Tomle  v.  Hempton,  129  111.  379. 

-  City  of  Peoria  et  al.  v.  Simpson,  110  111.  294. 

3Gridley  v.  City  of  Blooniington,  68  111.  47. 

4  The  U.  B.  Mfg.  Co.  v.  Linsay,  10  111.  App.  583. 

5  Greene  et  al.  v.  Hague,  10  111.  App.  598. 
6Kurrus  v.  Seibert.  11  111.  App.  319. 


§179.]  DAMAGES    BY     WATER.  209 

nuisance,  he  must  have  a  clear  case;   there  must    be  "a 
strong  and  mischievous  case  of  pressing  necessity."  ' 

§  179.  Damages  by  water — There  is  no  implied  con- 
tract on  the  demise  of  real  estate  that  it  shall  be  fit  for 
the  purpose  for  which  it  was  let;  and  in  the  absence  of 
an  express  contract  to  keep  the  premises  in  repair,  the 
landlord  cannot  be  made  liable  for  damages  to  the  tenant 
caused  by  water  from  an  upper  floor." 

Where  the  water  pipes  in  a  building  are  of  the  proper 
size  and  properly  constructed,  a  tenant  occupying  a  room 
and  having  the  use  of  the  pipes  and  water  and  access  to 
a  crank  by  which  to  turn  off  the  water  to  prevent  freez- 
ing, and  who  neglects  to  turn  off  the  same,  whereby  it 
freezes  and  bursts  the  pipe  and  damages  his  goods  by 
leakage,  cannot  maintain  an  action  against  the  landlord 
for  damage,  on  account  of  his  own  negligence  and  want 
of  ordinary  care  in  not  turning  off  the  water  when  likely 
to  freeze.  A  clause  in  a  lease  exempting  the  landlord 
from  liability  for  damage  to  the  tenant  by  leakage  of 
water,  will  not  only  be  held  to  apply  to  leakage  in  the 
story  or  room  occupied  by  the  tenant,  when  it  appeal's 
that  the  water  pipes  are  in  a  room  or  the  floor  above, 
and  to  which  the  tenant  has  access  and  which  he  agrees 
to  keep  in  order,  but  will  also  apply  to  leakage  from  the 
pipes  in  such  upper  rooms  rented  to  other  parties.3 

To  make  the  landlord  liable  to  his  tenant  for  such 
injuries,  it  must  be  shown  that  the  agencies  causing  the 
damage  were   under   the  control  of  the  landlord   or   his 

1  Oswald  v.  Wolf,  129  III.  200. 
-  Mendel  v.  Fink,  8  111.  App.  378. 
3 Taylor  v.  Bailey,  74  111.  ITS. 
14 


•21(1  DEFECTIVE    PLUMBING.  [§180. 

agent,    and   that    the  damages    arose    by   negligence   or 
unskillful  use  of  such  agencies.' 

If  water  pipes  supply  water  to  the  portion  of  the 
building  let  and  the  lessor  turn  the  water  off  and  prohibit 
the  lessee  from  turning  it  on,  the  latter  may,  at  his  elec- 
tion, remain  in  possession  and  recover  damages,  or 
entirely  abandon  the  premises  and  the  lease.  But  a  les- 
see who  takes  possession  of  premises  which  have  a  defect- 
ive water  pipe  (there  being  no  agreement  in  the  lease 
concerning  the  matter)  can  recover  nothing  for  damages 
resulting  to  him  in  consequence  of  the  defective  pipe. 

The  common  lessor  is  not  responsible  to  the  lessee  of 
one  part  of  the  lessor's  building  if  this  lessee  suffer  injury 
from  the  lessee  of  another  part  of  the  building. 

A  landlord  is  answerable,  as  occupant,  not  as  land- 
lord, if,  while  occupying  a  portion  of  his  building,  he 
cause  injury  by  his  negligence  to  the  lessee  of  another 
portion.  He  is  liable  for  damage  unnecessarily  inflicted 
on  the  lessee  in  the  operation  of  repairing,  Button  v. 
*Holden,  4  Wend.  E.  043;  or  if  the  repairing  be  per- 
formed unskillfully  and  negligently.  Tamer  v.  McCar- 
thy, 4  E.  D.  Smith  R.  247.  See,  also,  White  v.  }fr<ili>>. 
63  N".  Y.  R.  609'. 

§  ISO.  Defective  plumbing  and  the  results  of  sewer 

i*as The  landlord  is  not  bound,  under  the  penalty  of 

fraud,  to  disclose  defects  in  the  plumbing  of  a  building, 
even  if  they  are  known  to  him.2 

It  is   the   duty  of   the   tenant,  upon   the  discovery  of 

1  Greene  v.  Hague,  10  Bradw.  598;  Mendel  v.   Fink,   8  Bradw.  378. 
Taylor  v.  Baily,  74  111.  178. 

•  Blake  v.  Ranous,  25  111.  App.  486. 


§  180.  |  DEFECTIVE    PLUMBING.  2]  1 

fraiululeiil  representations  which  induced  the  making  of 
the  lease,  to  rescind  at  once,  if  he  desires  to  escape  its 
obligations.      Failing  to  do  so,  he  must  abide  the  lease.1 

If  fraudulent  representations  are  made  to  the  tenant 
before  the  execution  of  a  lease,  that  the  premises  are 
free  from  sewer-gas,  and  he  moves  in  and  finds  the 
premises  so  infected  by  sewer-gas  as  to  be  injurious  to 
health,  it  is  the  duty  of  the  tenant,  if  he  wishes  to 
rescind  the  contract,  to  do  so  immediately  and  leave  the 
premises. 2 

The  law  does  not  imply  a  contract  on  part  of  the  land- 
lord that  the  premises  are  tenantable  or  that  they  will 
continue  so  during  the  term." 

The  landlord  is  not  bound,  in  the  absence  of  a  contract 
imposing  that  duty  upon  him,  to  keep  the  buildings  safe 
for  his  tenants,  nor  to  protect  them  from  intruders.4 

If  the  lessor  fail  to  perform  his  agreement,  the  lessee 
may  maintain  an  action  for  damages,  or,  when  sued  for 
rent,  may,  by  xv&y  of  recoupment  or  counter-claim,  inter- 
pose the  default. 

While  the  lessor's  agreement  cannot  be  made  the  sub- 
ject of  an  action  for  specific  performance,  yet  after  giving 
reasonable  notice  and  opportunity  to  carry  out  the  agree- 
ment, the  lessee,  if  the  lessor  persist  in  neglecting  per- 
formance, may  himself  make  the  repairs  and  collect  the 
expense  from  him.  If  the  repairs  required  be  consider- 
able, the  lessee  may,  instead  of  taking  this  course,  claim 

1  Little  et  ux.  v.  Dyer,  35  III.  App.  85. 
-  Morey  et  al.  v.  Pierce,  14  111.  App.  91. 
;  McCoull  v.  Herzberg,  33  111.  App.  542. 
4  Piatt  v.  Farney,  16  111.  App.  316. 


212  ISE    AN!)    OCCUPATION.  [§180. 

from  the  lessor  the  difference  in  value  of  the  premises  as 
they  are  and  as  they  would  have  been  if  in  proper  repair. 
While  probable  loss  of  business  profits  does  not  seem 
generally  to  form  a  proper  claim  for  damages,  vet, 
certain  premises  having  been  leased  for  a  hotel  and  the 
lessor  failing  in  his  agreement  to  put  them  in  repair,  it 
was  held  that  the  loss  of  profits  which  might  have  been 
realized  from  letting  rooms  was  recoverable. 

/",v  and  Occupation. 

The  action  of  assumpsit  cannot  be  sustained  for  use  and 
occupation  of  real  estate  unless  the  relation  of  landlord 
and  tenant  exists  under  a  contract,  express  or  implied ; 
and  a  contract  will  not  be  implied,  when  another  party 
expected  payment  of  rent:  thus,  when  an  executor,  dur- 
ing the  settlement  of  an  estate,  allowed  the  father  of  the 
devisees  to  occupy  land  bequeathed  to  them,  neither 
party  expecting  payment,  they  living  with  their  father 
but  never  having  had  possession,  nor  the  right  of  pos- 
session, it  was  held,  that  assumpsit  would  not  lie  against 
their  father's  estate  for  the  use,  ami  that  nothing  could 
be  recovered  for  use  and  occupation.1 

If  one  continues  to  occupy  premises  after  notice  from 
the  owner  that  he  will  be  expected  ,to  pay  rent,  he  will 
be  liable  for  use  and  occupation.2 

Nor  will  action  for  use  and  occupation  lie  against  a 
person  in  possession  under  a  contract  of  sale;  but  if  such 
contract  is  rescinded,  the  action  may  be  sustained.3 

'Clark  v.  Clark.  58  111.  527. 
5  Sanborn  v.  Haynes  et  al.,  20  111.  App.  335. 

3McNair  v.  Schwartz,  16  111.  24:  Dixon  v.  Haley.  16  111.  145;  Van- 
derhnrell  v.  Storrs.  3  Conn.  203. 


8    LSI.]  WHEN    TENANTS    LIABLE    FOE    U8E.  213 

If  a  partv  holds  possession  against  the  will  of  the 
owner,  the  law  will  infer  an  implied  agreement  to  pay  a 
reasonable  rent  therefor.1 

The  action  of  assumpsit  for  use  and  occupation  is 
founded  upon  contract  and  the  relation  of  landlord  and 
tenant  must  exist." 

Under  a  contract  for  rent  for  a  year,  commencing  in 
futuro\  where  a  lessee  actually  takes  possession  of  the 
premises  and  occupies  them,  he  will  be  liable  lot-  the  use 
and  occupation  for  the  term,  although  the  lease  may  be 
void  under  Statute  of  Frauds.3 

>>  181.   When  tenants  liable  for  use  and  occupation. 

—If  one  continues  to  occupy  premises  after  being  notified 
by  the  owner,  that  if  he  does  so  he  will  be  expected  to 
pay  rent,  the  occupant  will  thereby  become  liable  to  the 
owner  for  the  use  and  occupation.4 

A  person  lawfully  withholding  the  premises  is  liable  to 
the  owner  for  their  reasonable  rental,  estimated  at  the 
time  the  liability  arises,  and  he  takes  upon  himself  the 
risk  of  an  unfavorable  season." 

Where  a  tenant  occupying  the  land  under  a  parol  lea><' 
holds  over  without  any  new  agreement  as  to  rent  after 
the  expiration  of  his  term  and  after  the  sale  of  the  land 
by  his  landlord,  such  holding  over  will  be  considered  to 
be  a  holding  over  under  the  terms  of  the  lease  and  the 
same  rate  of  rent  may  be  recovered   from  the  tenant  by 

1  Oakes  v.  Oakes,  10  111.  10(5. 

'-'  Sanboru  v.  Haynes  et  al.,  26  111.  App.  335. 

3  Smith  v.  Kinkaid,  1  111.  App.  620. 

4  111.  Cent.  R   R.  Co.  v.  Thompson,  110  111.  159. 
•Gilliam  v.  Coon  et  al.,  10  111.  App.  43. 


-14  ACTIONS    FOE    RENT.  [§182. 

the  vendee  of  the  landlord  in  an  action  of  assumpsit  for 
use  and  occupation.1 

§  182.  Actions  for  rent  and  for  use  and  occupation. 

— Actions  by  landlords  against  tenants  are  in  some 
instances  brought  to  recover  rent,  in  other  instances,  to 
recover  compensation  for  the  use  and  occupation  of  the 
premises. 

"The  legal  acceptation  of  debt,''1  remarks  Blackstone 
"is  a  sum  of  money  due  by  certain  and  express  agree- 
ment, as  by  a  bond  for  a  determinate  sum ;  a  bill  or  note ; 
a  special  bargain;  or  a  rent  reserved  in  a  lease;  where 
the  quantity  is  fixed  and  specific  and  does  not  depend 
upon  any  subsequent  valuation  to  settle  it.  The  non- 
payment of  these  is  an  injury,  for  which  the  proper  rem- 
edy is  by  action  of  debt  to  compel  the  performance  of  the 
contract  and  recover  the  specifical  sum  due."  2 

The  rent  which  is  to  furnish  the  measure  of  damages 
must  be  something  in  the  nature  of  an  annual,  or  at  least 
regular,  periodical  payment,  not  some  single  payment, 
made,  or  agreed  to  be  made,  under  such  circumstances 
that  no  inference  can  properly  be  drawn  of  intention,  or 
contract,  to  make  another  similar  payment.  Nor  will 
former  rent  create  any  liability  for  the  future,  after  the 
term  to  which  it  had  relation  has  expired,  if  the  rent  was 
paid  or  agreed  to  be  paid  by  some  person  who.  in  the 
absence  of  special  contract  to  pay  rent  or  compensation 
for  occupation,  would  be  entitled  to  occupy  the  premises 
free  of  charge.  Thus,  one  tenant  in  common  who  has 
hired  for  a  certain  term,  and  at  a  certain  rent,  his  co-ten- 

1  Price  v.  Pittsburgh  &  F.  W.  &  C.  P.  R.  Co.,  34  111.  V\. 
•:!  Bl.  Comm.  p.  154. 


§§    ljvi,    1  84.  I         SET-OFF    AND    RECOUPMENT.  2  I  ."> 

ant's  moiety  of  the  common  property,  is  not  liable  for  use 
and  occupation,  if  he  continue  in  possession  when  the  term 
has  elapsed,  unless  there  be  evidence  that  he  holds  as  a 
tenant,  since,  in  the  absence  of  evidence  to  the  contrary,  he 
is  deemed  to  be  in  possession  by  his  right  as  owner. 

?j   183.  Set-off  and  recoupment The  law  does  not 

permit  a  set-off  except  where  the  demands  of  both  parties 
are  liquidated  or  are  capable  of  being  ascertained  by 
calculation.1 

A  surety  for  the  tenant  may  set  up.  in  defense  to  an 
action  against  him,  any  matter  that  operates  as  a  dis- 
charge of  the  tenant  from  liability  upon  the  lease.  But 
the  landlord  must  create  a  new  tenancy,  bv  aereeino-  to 
accept  the  sub-tenant  or  assignee  of  the  lessee  in  substitu- 
tion for  the  original  lessee,  before  the  latter  will  be  dis- 
charged, and  before  the  sureties  of  the  latter  will  be 
discharged." 

A  recovery  of  judgment  for  rent,  with  satisfaction  of 
the  judgment,  or,  perhaps,  even  recovery  alone,  will 
form  a  bar  to  an  action  for  any  rent  which  had  accrued 
on  the  lease,  and  might  properly  have  been  included  in 
the  action  in  which  the  judgment  was  recovered. 

§  184.  Recoupment  against  rent A  tenant  will  not 

be  allowed  credit  against  the  rent  for  improvements  made 
on  the  demised  premises  in  excess  of  the  amount  agreed 
on  by  the  landlord,  unless  the  landlord  afterwards  rati- 
fies and  approves  the  same.4 

1  Taylor,  Landlord  and  Tenant,  sec.  374. 

•'  Grommes  et  al.  v.  St.  Paul  Trust  Co.  et  al.  147  111.  <>:54. 

3  Jex  v.  Jacob,  19  Hun  (N.  Y.  S.  C),  R.  105. 

4Herrell  et  al.  v.  Sizeland  et  al..  81  111.  457. 


216  SET-OFF WHEN    ALLOWED.  [§185. 

It  seemed  to  be  the  theory  of  the  ancient  law,  that 
the  covenants  on  part  of  the  landlord  to  repair  and  the  cov- 
enants as  to  the  tenancy  were  independent  of  each  other; 
that  the  tenant  could  not  set  off  in  a  cross  action  the 
amount  of  damage  sustained  by  him  against  a  demand 
for  rent,  because  the  rent  was  a  fixed,  certain  amount  and 
the  damages  on  account  of  broken  covenants  to  repair 
were  uncertain.1 

But  now  it  is  a  generally  recognized  principle,  that  a 
defendant  need  not  resort  to  a  cross-action  on  a  plaint- 
iff's contract  of  indemnity  in  any  case,  but  may  set  up 
his  damages  or  counter  claim  by  way  of  reducing  the 
plaintiff's  demand.  Where  the  demands  of  both  parties 
issue  out  of  the  same  contract  or  transaction,  the  defend- 
ant is  allowed  a  right  to  recoup ;  that  is,  to  keep  back 
something  that  is  in  fact  due,  because  there  is  an  equita- 
ble reason  why  it  should  be  withheld,  although  the  dam- 
ages on  both  sides  are  unliquidated.2 

An  executory  lease  under  seal  cannot,  without  a  new 
consideration,  be  changed  by  parol  so  as  to  form  the 
basis  of  an  action,  or  for  recoupment.3 

>J  185.  Set  off — when  allowed. — If  the  landlord  fail 
to  repair  according  to  his  covenant,  the  tenant  may 
recoup  from  the  rent  or  may  sue  upon  the  covenant ;  but 
in  that  case  his  possession  remains  undisturbed,  the 
breach  of  the  covenant  hindering  more  commodious 
enjoyment  of  the  term,  whilst,  in  case  of  eviction, 
the   term  is  gone,   or  the   property  so  situated    that   it 

1  Watts  v.  Coffin,  11  Johns.  495. 
-  Ives  v.  Van  Eppes,  22  Wend.  165. 
3  Reeves  v.  Hyde,  14  111.  App.  233. 


§    1  86.]  DAMAGES.  •_'  17 

ceases  to  be  useful   for  the  purpose   for  which   the  term 
was  obtained.1 

In  an  action  on  a  lease  against  the  tenant  to  recover 
damages  for  a  breach  of  the  lease,  the  defendant  may 
introduce,  by  way  of  recoupment  under  the  general 
issue,  evidence  to  show  that  the  plaintiff  had  represented 
the  roof  to  be  in  good  condition,  but  that  it  was  leaky 
and  the  defendant's  goods  were  injured  in  consequence.2 

§  186.  Damages. — There  is  nothing  in  the  forcible 
entry  and  detainer  act  authorizing  the  court  to  render  a 
judgment  for  money  or  damages.3 

Damages  cannot  be  allowed  in  an  action  of  forcible 
entry  and  detainer.4 

Under  the  common  law,  a  party  was  liable  to  indict- 
ment, and  might  be  convicted  of  either  a  forcible  entry 
or  a  forcible  detainer,  each  being  considered  a  distinct 
criminal  offense.  But  under  the  statute,  the  action  is 
entirely  a  civil  remedy,  and  the  sole  object  that  can  be 
gained  by  it,  is  the  possession  of  the  premises  wrongfully 
withheld. 

Damages  are  not  recoverable  in  this  action,  and  the 
only  judgment  that  can  be  rendered  for  the  plaintiff  is 
the  restitution  of  the  premises  of  which  he  has  been 
u n justly  depri ved . ;' 

A  jury,  in  an  action  of  forcible  entry  and  detainer, 
having;  rendered  a  verdict  finding  the  defendant  guiltv, 

1  Wright  v.  Lattin  et  al.,  38  111   293. 

2  Stubblefield  v.  Soule.  21  111.  App.  154. 

3  Gould  et  al.  v.  Hendrickson,  9  111.  App.  171. 

4  Brush  v.  Fowler,  36  111.  53. 

Robinson  v.  Crammer,  5  Giliu.  222:  Mason  v.  Finch,  1  Seam.  495. 


218  damages!  [§  186. 

and  assessing  plaintiff's  damages  at  one  cent,  the  court 
held  :  "As  to  the  verdict  for  one  cent  damages,  though 
damages  cannot  be  allowed  in  such  action,  we  will  not 
reverse  the  judgment  for  that  cause,  the  merits  being  so 
clearly  with  the  appellee."'  ' 

But  damages  suffered  from  negligent  performance  by 
the  lessor  of  some  work  about  the  premises,  which  work- 
was  done  for  the  benefit  of  the  lessor  by  lessee's  permis- 
sion, not  by  virtue  of  the  lease,  and  which  work  the  les- 
sor had  promised  to  do  "with  diligence,  care  and 
caution,"  would  constitute  such  a  counter-claim. 

Breach  of  a  covenant  in  the  lease  might,  at  common 
law,  be  recouped.  Tone  v.  Brace,  CI.  R.  503,  510,  S. 
('..  8  Paige,  R.  597,  599.  Special  damages  have  been 
said  not  to  be  the  subject  of  recoupment.  BenJcard  v. 
Babcock,  2  Robt.  R.  175,  182. 

In  an  action  by  the  landlord  for  rent,  the  lessee  may 
recoup  damages  arising  from  a  leasing  of  contiguous  parts 
of  the  premises  for  the  sale  of  liquor,  contrary  to  the 
agreement,  and  in  such  case,  exemplary  and  punitive 
damages  may  be  recovered." 

Evidence  of  damages  occasioned  to  the  tenant  by  being 
prevented  from  removing  from  the  demised  premises,  a 
house  thereon  belonging  to  her,  for  the  purpose  of 
recouping  the  damages  thus  sustained  from  the  rents, 
was  properly  excluded.3 

1  Brush  v.  Fowler,  30  111.  33:  Gould  v.  Heudricksou,  9  Bradw.  171; 
Walker  v.  Shoemaker,  4  Hun.  (N.  Y.  S.  C),  R-  579.  See  Crane  v. 
Hardman,  4  E.  D.  Smith.  R.  839.  Compare  Cram  v.  Dresser.  2 
Sandf.  R.  120. 

-  Chicago  Legal  News  Co.  v.  Browne  et  al.,  5  III.  App.  250. 

;  Keegan  et  al.  v.  Kinnare,  Adrnx..  123  111   280. 


§186.]  DAMAGES.  219 

An  agreement  in  a  lease  to  pay  so  much  per  day  as 
liquidated  damages  for  each  day  the  possession  is  with- 
held after  the  terms  of  lease  by  lapse  of  time,  is  valid 
and  not  to  be  treated  as  a  penalty.1 

Where  a  lot  is  rented  only  for  the  purpose  of  building 
cribs  on  it  in  which  to  store  corn,  the  lessee  will  be 
responsible  to  the  lessor  for  any  tortious  acts  committed 
by  the  tenant  outside  of  such  use,  resulting  in  injury  to 
the  premises." 

A.  justice  of  the  peace  has  jurisdiction  in  a  suit  for 
damages  to  real  estate  done  by  a  party  entering  the  same 
under  a  lease,  and  the  owner  may  recover  for  the  same 
without  being  in  actual  possession  at  the  time  of  the 
injury/ 

In  an  action  brought  for  the  recovery  of  rent,  damages 
claimed  by  the  tenant  for  injuries  to  his  stock  through  a 
choked  water-pipe  were  properly  admitted.4 

The  failure  of  a  landlord  to  carry  but  an  agreement  to 
repair  is  a  matter  of  defense  in  an  action  for  rent,  and 
damages  suffered  by  reason  thereof  may  be  recouped 
therefrom.' 

In  order  to  make  a  landlord   liable  to  his   tenant   for 

injuries   from   water  from   an    upper  floor,    it   must    be 

shown   that    agencies  causing  damages   were   under  the 

management  of  his  landlord  or  the  latter's  agent;    that 

the  damage  arises  by  reason  of  the  unskillful  uses  of  such 

agencies.1' 

1  Poppers  v.  Meager.  47  111.  App.  593. 
Taylor  et  al.  v.  Koshetz,  88  111.  479. 
;i  Taylor  et  al.  v.  Koshetz,  88  111.  479. 
4  Mitchell  v.  Plaut,  31  111.  App.  148. 
6  Clark  v.  Ford,  41  111.  App.  199. 
1  Mendel  v.  Fink.  8  111.  App.  378. 


•2-20  DAMAGES    FOK    FAILING    TO    KK1WTK.  [§    L87. 

If  the  lessee  has  suffered  damage  by  reason  of  the  fail- 
ure of  the  lessor  to  complete  the  building  within  the  time 
agreed  upon,  such  damage  may  be  recouped  in  a  proceed- 
ing for  the  recovery  of  the  rent  to  the  extent  of  the  rent : 
and  if  the  damage  exceeds  that  amount,  the  excess  may 
be  recovered  over  in  the  same  proceeding.1 

§  187.  Damages  for  failing  to  repair — If,  a  valid 
contract  for  leasing  having  been  entered  into,  the  lessor 
fail  to  complete  his  contract  by  delivering  the  lease,  the 
lessee,  may,  if  its  delivery  be  practicable,  enforce  delivery 
hv  an  action  for  specific  performance,  or  he  may  content 
himself  with  an  action  for  damages  only. 

The  measure  of  damages  in  the  case  of  a  lessor  able  to 
complete  the  contract,  yet  perversely  refusing,  will  include 
the  value  of  the  lessee's  bargain,  and  any  special  damage 
actually  resulting  to  him  from  the  lessor's  violation  of 
contract.  But  if  the*  lessor  find  the  agreement  to  be  one 
which,  through  some  misfortune,  or  on  account  of  some 
mistake,  he  is  unable  to  perform,  nominal  damages  only 
will  doubtless  be  recoverable. 

Some  cases  of  fraud  seem  to  entitle  the  lessee  after 
entry  as  well  to  rescind  as  to  maintain  an  action  for 
damages.  Thus,  a  landlord  leasing  premises  with  knowl- 
edge of  their  being  infected  by  disease  and  concealing 
this  fact  from  the  lessee,  will  be  liable  in  damages  to  the 
lessee,  if  the  latter  contract  the  disease.  The  right  of 
rescinding  the  lease  appears  in  such  a  case  of  premises 
being  infected  equally  clear,  even  without  the  tenant 
contracting  the  disease."' 

1  Haven  &  White  v.  Waketield  et  al..  39  111.  509. 
-Jackson  v.  Odell,  9  Daly  K.  371;  Minor  v.  Sharon,  112  Mass.  K. 
477;  Smith  v.  Man-able.  11  M.  &  W.  R.  5  pr. .  Abinger  L   C.  B.  p.  9. 


§    L88.]  BE  -KNTIIY     BY     LANDLORD.  221 

While  the  right  to  rescind  for  known  fraud  of  the 
Lessor  is  lost  by  entry,  the  right  to  recover  damages 
resulting  from  fraud  of  the  lessor  affecting  the  value  of 
the  lease  is  not  thus  impaired.  And  these  damages  may 
be  set  uj)  !>v  way  of  counter-claim  or  recoupment  in  an 
action  for  rent.1 

The  assignee  of  a  life  estate  in  lands,  subject  to  the 
payment  of  rent,  is  bound  to  pay  the  taxes  assessed  on 
the  premises  during  his  tenancy  and  cannot  recoup  or  set 
off  the  same  against  the  rent  of  the  premises.3 

§188.  Re-entry  by  landlord. 

When  re-entry  by  landlord  determines  lease. — Where  a 
lease  contains  a  stipulation,  that  for  any  breach  of  the 
covenants  by  the  lessee  the  lease  shall  "  determine  and 
be  utterly  void," — that  is  to  say,  void  at  the  election  of 
the  lessor, — -an  entry  by  the  landlord  will  be  regarded  as 
an  exercise  of  his  option  to  determine  the  lease  and  he 
can  not  have  a  recovery  for  subsequently  accruing  rent. 

When  re-entry  by  landlord  does  not  stop  the  subsequent 
rents,— Where  the  lease  contains  no  provision  that  it 
shall  become  void  for  failure  to  pay  rent,  but  provides 
that  a  re-entry  and  taking  of  possession  by  the  landlord 
shall  not  have  the  effect  of  determining  the  lease  nor 
operate  to  prevent  its  continuing  in  force,  such  re-entry 
for  the  non-payment  of  rent  then  due  will  not  release 
the  tenant  from  the  payment  of  the  subsequently  accru- 
ing rent. 

There  is  nothing  illegal  or  improper  in  a  covenant  in  a 
lease,  that    the  obligation  of  the  tenant    to  pay  all   the 

Whitney  v.  Allaire.  1  N.  Y.  R.  305-310. 
-  Prettvman  v.  Walston,  '-'A  Til.  175. 


222  RE-ENTRY     BY     LANDLORD.  [§188. 

rents  to  the  end  of  the  term  shall  remain,  noth withstand- 
ing there  may  be  a  re-entry  for  a  default,  and  such  an 
agreement  may  be  enforced  against  the  tenant  and  his 
sureties  or  guarantors. 

Right  of  re-entry — mode  of  entry. — Where  a  lease 
authorizes  a  landlord  to  re-enter  in  case  of  default  in  the 
payment  of  rent,  the  fact  that  such  entry  is  made  after 
establishing  the  landlord's  right  to  make  the  same  by  an 
action  of  forcible  detainer,  instead  of  making  the  same 
without  a  judgment  of  restitution,  is  no  just  ground  of 
complaint. 

It  may  not  be  strictly  accurate  to  call  the  money  to 
be  paid  after  re-entry  ,;  rent,"  or  to  treat  the  lease  as  in 
force  after  re-entry ;  but  the  parties  have  the  right  to 
fix  the  amount  of  the  rent  to  accrue,  according  to  the 
terms  of  the  lease,  as  the  amount  of  damages  to  be  paid 
by  the  tenant  in  case  of  a  breach  of  his  covenants.  It 
can  make  but  little  practical  difference  whether  the  sum 
agreed  to  be  paid  be  called  rent  or  damages.1 

1  Grommes  et  al.  v.  St.  Paul  Trust  Co.  et.  al.  147  111.  634. 


£§  189,  190.1  definition.  223 


CHAPTER    XVIII. 

FIXTURES. 

Section  189.  Definition. 

190.  Landlord's  fixtures. 

191.  Tenant's  fixtures. 

192.  Removing  fixtures. 

193.  The  intention  as  to  fixtures. 

194.  Cases  in  illustration. 

§  189.  Definition. — What  are  known  as  fixtures,  are 
articles  originally  personal  in  their  nature,  which,  in 
some  manner,  have  been  fixed  or  attached  to  the  realty. 
Some  articles,  so  fixed  or  attached  by  the  tenant,  he  is 
entitled  to  remove ;  other  articles,  similarly  circum- 
stanced, he  is  obliged,  at  the  end  of  his  occupancy,  to 
abandon  to  his  landlord.  Fixtures  of  this  kind  which 
the  tenant  may  remove  have  been  called  "tenant's  fix- 
tures;" those  which  he  must  resign  to  the  landlord, 
'*  landlord's  fixtures. " 

§  190.    Landlord's   fixtures While,    by    agreement 

between  themselves,  the  landlord  and  tenant  may  arrange, 
to  a  great  extent,  what  annexations  the  tenant  may 
remove,  yet  there  are  held  to  be  certain  distinctions 
existing  in  the  nature  of  things,  according  to  which  dis- 
tinctions the  transfer  and  devolution  of  property  are 
regulated,  and  these  distinctions  contracting  parties  can- 
not abrogate.  Such  is  the  distinction  between  real  and 
personal  property.  The  separate  articles  and  materials 
out  of  which  the  walls  of  a  house  have  been  constructed 


224  tenant's  fixtures.  [§191. 

become,  by  such  use,  real  estate,  and  no  arrangement 
among  parties  can  convert  them  into  mere  chattels.  A 
license  concerning  them  may  be  given,  but  they  cannot 
be  made  alienable  as  chattels,  nor  can  the  rules  of  suc- 
cession of  personal  property  be  made  applicable  to  them. 

§  191.  Tenant's  fixtures In  the  instance  of  cove- 
nants running  with  the  land,  we  have  seen  the  provisions 
of  a  statute  limited  by  construction  with  reference  to  a 
principle  somewhat  analogous. 

Any  articles,  however,  which  have  been  attached  to 
the  realty,  and  which,  in  the  absence  of  agreement,  or  of 
any  special  relation  between  parties  interested,  would 
become,  by  this  attachment,  a  part  of  the  realty,  yet 
which,  by  the  manner  of  attachment,  "were  not  so 
absorbed  or  merged  in  the  realty  that  their  identity  as 
personal  chattels  were  lost,*'  may,  under  some  circum- 
stances, be  personal  property,  and  consequently  remov- 
able, unless  they  cannot  be  removed  "without  practi- 
cally destroying"  them,  or  unless  they  be  necessary  to 
the  support  of  something,  part  of  the  realty,  with  which 
they  are  connected. 

Subject  to  the  limitations  mentioned,  the  principal  test 
of  the  tenant's  right  to  a  fixture  which  he  has  placed  is 
(in  the  absence  of  any  express  agreement)  the  intention 
with  which  he  annexed  the  article,  whether  for  the  per- 
manent and  substantial  improvement  of  the  premises,  or 
whether  for  a  temporary  object,  or  for  his  own  mere 
convenience.  As  his  interest  is  temporary,  it  will  be 
presumed,  where  the  presumption  would  not  violate  these 
limitations,  that  any  article  which  he  has  attached  was 
intended  for  his  own  convenience  rather  than  for  the 
improvement  of  the  realty. 


^    192.]   ■  REMOVING     FIXTURES.  225 

§  192.  Removing  fixtures Fixtures  which    he    will 

be  deemed  to  have  attached  for  his  own  use,  and  which 
he  will  be  entitled  to  remove  at  the  end  of  his  occupancy, 
seem,  in  the  instance  of  a  tenant  of  a  residence,  to  be 
such  domestic  fixtures  as  hangings,  pier-glasses,  chim- 
ney glasses,  book-cases,  carpets,  blinds,  and  curtains, 
although  they  be  physically  attached  to  the  premises. 
So  it  seems  he  may  remove  grates,  ranges,  and  furnaces 
which  he  has  placed,  lie  may  remove  gas-fixtures  he 
has  affixed,  but  not  gas-pipes.1 

In  an  English  case,  where  a  tenant  had  arched  over  an 
open  well,  and  erected  a  pump,  which  was  attached  to  a 
stout  perpendicular  plank,  resting  on  the  ground  at  one 
end,  and  at  the  other  fastened  by  an  iron  bolt  or  pin  to 
an  adjacent  wall,  from  which  it  was  distant  about  four 
inches,  it  was  held  that  he  had  a  right  to  remove  the 
pump,  for  the  reasons,  as  stated  by  one  of  the  judges, 
that  it  was  placed  for  domestic  convenience  by  the  ten- 
ant, was  slightly  fixed,  and  could  be  removed  entire.'2 

Instances  of  articles  attached  by  the  tenant,  whether 
they  be  properly  fixtures  or  not,  which  articles,  when 
once  annexed  to  the  premises,  are  considered  as  having 
been  placed  for  the  benefit  of  the  property,  are  doubt- 
less afforded  by  new  locks  placed  upon  doors,  and  new 
keys  purchased  for  locks  already  on.3  But  a  padlock 
placed  by  the  tenant,  not  to  replace  one  which  had  pre- 
viously been  placed  by  the  landlord  or  former  occupant, 
may,  it  has  been  said,  in  a  Massachusetts  case,  be  removed 

1  McKeage  v.  Hanover  F:  Ins.  Co  .  81  N.  Y.  R.  38. 
-  Grymes  v.  Boweren,  6  Bing.  R.  437. 

-Bishop  v.  Elliott,  11  Ex.  R.  113;  Elliott  v.  Bishop,  10  Ex.  R.  4!)<>. 
15 


226  INTENTION    As    TO    FIXTURES.  [§193. 

by  the  tenant.1  It  has  been  held  in  an  English  case  that 
a  box  border,  planted  in  a  garden  by  the  tenant,  is  to  be 
considered  "a  thing  intended  to  be  permanent,"  which, 
therefore,  may  not  lie  removed,  and  this  was  said,  in  the 
same  case,  to  be  the  law  concerning  flowers  planted  "  in 
the  ground." " 

As  between  landlord  and  tenant,  improvements  put  on 
the  demised  premises  by  the  latter  for  purposes  of  trade 
or  manufacture,  and  which  can  be  detached  without  injury 
to  the  estate,  may  be  removed  by  him  before  he  quits 
the  possession.3 

It  is  not  necessary  that  a  chattel  should  always  be 
fastened  or  attached  to  the  realty  to  make  it  part  of  the 
real  estate.4 

§  193.  The  intention  as  to  fixtures. —  The  intention 
of  the  parties  as  to  the  uses  and  purposes  to  which  a 
chattel  is  put,  is  the  criterion  in  deciding  whether  it  is 
part  of  the  realty,  or  not.5 

A  mirror  built  on  the  chimney  breast  in  keeping  with 
the  finish  of  the  rest  of  the  room,  and  so  attached  on 
the  chimney  front  that  it  could  not  be  removed  without 
tearing  away  a  portion  of  the  plastering,  was  decided  to 
be  part  of  the  realty  and  pass  by  the  deed  of  the  land." 

1  Whiting  v.  Brastow,  4  Pick.  R.  310. 

-  Empson  v.  Soden,  4  B.  &  Ad.  R.  655.  See  Rules  of  the  Roman 
Civil  Law,  Instit.  Lib.  11.  T.  1,  §§  81,  32. 

3  2  Kent's  Com.  343;  Mason  v.  Fenn,  13  111.  525. 

4 Otis  v.  May,  30  111.  App.  581;  Jones  on  Mortgages,  sec.  446:  Jenney 
v.  Jackson  et  al.,  6  111.  App.  32;  Thielman  et  al.  v.  Can*  et  al.,  75  111. 
385;  Palmer  v.  Forbes,  23  111.  301:  Arnold  v.  Crowder,  81  111.  56. 

5  Otis  v.  May,  30  111.  App.  581. 

6  Spinney  v.  Barbe,  43  111.  App.  585. 


§   194.]  CASKS    IN     ELLUSTRATION.  227 

§194.  Cases  in  illustration — A  bar,  counter  and 
shelf  placed  into  a  building  by  a  tenant  for  the  purpose 
of  conducting  a  saloon  and  attached  to  the  realty  so  that 
they  can  be  removed  without  injury  to  the  premises,  are 
trade  fixtures  and  do  not  pass  with  the  realty.1 

In  order  that  the  fixtures  of  a  cigar-stand  in  a  hotel 
may  retain  the  character  of  removable  trade  fixtures,  it 
is  necessary,  upon  the  expiration  of  each  tenancy  of  the 
house,  that  such  right  be  duly  asserted.2 

Distillery  pipes  and  machinery  are  trade  fixtures  and 
may  be  removed  by  the  tenant,  who  has  erected  or 
bought  them,  at  any  time  while  he  is  in  possession.3 

Where  a  tenant  has  a  right  to  remove  certain  fixtures 
from  the  premises,  he  should  do  so  before  he  gives  up 
possession  to  the  landlord ;  for  if  the  tenant  leaves  the 
premises  without  removing  them  and  the  landlord  takes 
possession,  the  fixtures  so  left  become  the  property  of  the 
landlord.4 

Trover  will  not  lie  for  fixtures  while  still  annexed.5 

1  Berger  v.  Hoerner,  36  111.  App.  360. 

-'  Leman  et  al.  v.  Best  et  al.,  30  111.  App.  323. 

3  Moore  v.  Smith,  24  111.  513. 

4  Donnelly  v.  Thieben,  9  Bradw.  495;  AVood's  Landlord  and  Tenant, 
sec.  532. 

5  Leman  et  al.  v.  Best  et  al.,  30  111.  App.  323. 


228  RENT    DEFINED.  [§195. 


CHAPTEK  XIX. 

DISTRESS  FOR  RENT. 

Section  195.  Rent  denned. 

196.  The  warrant  for  distress. 

197.  Proceedings  for  distress. 

198.  Distress  warrant  subject  to  lien  of  execution  already 

levied. 

199.  Interest  of  chattel  mortgagee. 

200.  What  property  subject  to  levy. 

201.  Amount  claimed  by  landlord  limits  his  recovery. 

202.  The  office  of  the  warrant. 

203.  The  landlord's  lien  on  crops. 

204.  Trial  in  distress  cases. 

205.  Cases  in  illustration. 

206.  Practice  in  distress-for-rent  cases. 

^  195.  Rent  defined. — Blackstone  describes  "rent" 
as  being  "  a  certain  profit  issuing  yearly  out  of  lands  and 
tenements."  ] 

Again  it  is  described  as  the  recompense  for  the  use  and 
occupation  of  lands;  but  it  is  not  confined  closely  to  the 
compensation  for  the  use  of  land,  for  chattels  are  often 
demised  with  the  land  and  form  no  inconsiderable  por- 
tion of  the  consideration  for  which  rent  is  paid."  And 
Bingham  says  "rent  is  the  compensation  to  the  proprietor 
of  land  for  the  right  to  enjoy  his  land  and  the  right  to 
enjoy  its  annual  profits. ' ' 3 

It  must  be  certain  in  amount  and  nature,  but  that  it  is 

1  2  Black.  Com.  41. 
.  -  Lathrop  v.  Clewiss,  63  Ga.  282:  Toler  v.  Seebrook,  39  Ga.  14. 
3  Bingham  on  Real  Estate.  557. 


§    L95.  |  RENT    DEFINED.  229 

such,  that  it  may  be  reduced  to  certainty,  will  suffice.  It 
must  be  a  profit,  but  not  necessarily  money — it  may  be 
payable  in  other  articles,  or  by  the  performance  of  per- 
sonal services.  So,  too,  it  must  issue  yearly,  but  may  be 
payable  annually  or  every  second  or  third  year. 

While  rent  will,  of  course,  become  clue  on  the  day 
when,  by  the  lease,  it  has  been  made  payable,  yet,  as  the 
tenant  is  allowed  the  whole  of  this  day  to  pay,  no  action 
for  the  rent,  if  unpaid,  can  properly  be  commenced  until 
the  following  day.  If  the  time  for  payment  be  alterna- 
tive, as  ''quarterly  or  monthly."  the  election  belongs  to 
the  landlord. 

Rent  reserved  payable  in  advance,  will  become  due  and 
may  be  demanded  accordingly.  The  notion  entertained 
by  some,  that  rent  cannot  be  collected  until  the  end  of 
the  month  because  the  tenant  has  not  enjoyed  the 
premises,  is  a  mistake;  if  required  by  the  lease  to  be 
paid  in  advance,  it  can  be  demanded  and  collected. 

If  no  express  agreement  concerning  amount  of  rent  has 
been  made,  the  landlord,  if  the  lease  be  not  under  seal, 
may  recover  the  reasonable  value  of  the  use  of  the 
premises. 

The  weight  of  authority  as  to  place  of  payment  of  rent 
seems  to  be  that,  whether  payable  in  money,  in  kind,  or 
in  services,  the  premises  let  are  the  place  of  payment,  in 
the  absence  of  any  agreement  to  the  contrary.1 

Where  premises  are  demised  for  a  year  or  a  greater  or 
other  definite  period,  the  rent  will  be  payable  at  the  end 

1  Van  Rensselaer  v.  Jones,  5  Denio,  R.  449,  453;  Walter  v.  Dewey, 
16  Johns.  R.  222:  Livingston  v.  Miller.  8  N.  Y.  R.  283,  per  Gardiner. 
J.,  p.  289:  S.  C.  11  N.  Y.  R.  80,  Remsen  v.  Conklin,  18  Johns.  R,  447. 


230  THE    WARRANT    FOE    DISTRESS.  [§  196. 

of  the  year  or  other  time  fixed  for  the  termination  of 
the  tenancy,  unless  the  lease  provides  that  it  shall  be  pay- 
able at  some  particular  time  or  unless  a  general  custom 
at  the  place  where  the  premises  are  situated  fixes  the 
time. ' 

Where,  by  the  terms  of  a  lease  or  contract  of  renting, 
rent  becomes  due  before  the  expiration  of  the  term,  the 
landlord  is  authorized  to  distrain  when  the  rent  becomes 
due,  and  is  under  no  obligation  to  wait  until  the  expira- 
tion of  the  term.2 

The  statute  giving  the  tenant  in  a  distress  for  rent  the 
right  to  avail  of  a  set-off,  was  intended  to  apply  only  to 
cases  where,  upon  a  fair  adjustment  of  all  counter-claims 
other  than  the  rent,  the  landlord  will  be  indebted  to  the 
tenant,  and  in  such  case  gives  the  tenant  the  benefit  of 
his  claim  on  such  balance.3 

§  196.    The  warrant  for  distress In  a  levy  of  a 

distress  warrant,  where  the  warrant  is  insufficient  and 
the  levy  by  distress  fails  on  that  account,  yet  the  land- 
lord may  recover  a  judgment  for  the  rent  where  there 
was  a  personal  appearance  and  defense  to  the  merits. 
even  though  the  levy  of  the  distress  warrant  was  not 
sufficient.4 

The  taking  of  other  security  is  not  a  waiver  of  the 
landlord's  right  to  distress  for  rent;  he  may  pursue  both 
remedies  at  the  same  time.' 

'Toler  v.  Seebrook.  39  Ga.  14;  Ridgley  v.  Stilwell,  ?7  Mo,  128; 
Dixon  v.  Niccolls  et  al  .  39  Til.  3T"2. 

2  Atkins  v.  Byrnes,  71  111.  326. 

3  Cox  v.  Jordan,  86  111.  560. 

4Holley  et  al.  v.  Metcalf,  12  111.  App.  141. 
5Cunnea  v.  Williams.  11  111.  App.  72. 


8    197.1  PROCEEDINGS    FOE    DISTRESS.  -•"•! 

Where,  after  the  levy  of  a  distress  warrant,  property 
is  disposed  of  by  the  landlord  contrary  to  the  statute, 
trover  may  be  maintained  by  the  tenant.' 

Where  the  relation  of  landlord  and  tenant  did  not 
exist  between  appellant  and  appellee,  there  could  be  no 
distress  for  rent." 

Where  a  landlord  deprives  his  tenant  of  possession  of 
rented  prope'rty,  he  cannot  recover  rent  during  the  time 
the  tenant  is  so  deprived  of  possession,  even  if  the  lease 
has  not  yet  terminated.  There  can  be  no  distress  for 
rent  unless  there  has  been  an  actual  lease.3 

Under  the  statute  of  Illinois,  where  the  tenant  aban- 
dons the  demised  premises,  growing  crops  may  be  seized, 
whether  the  rent  is  due  or  not,  but  otherwise  property 
cannot  be  taken  under  a  distress  warrant,  except  for  rent 
due.1 

§  19?.  Proceedings  for  distress. — A  description  of 
the  demised  premises  in  a  distress  warrant  is  surplusage, 
and  if  inserted,  can  make  no  difference/ 

Proceedings  by  distress  warrant  for  the  collection  of 
rent  are  not  governed  by  the  practice  affecting  ordinary 
trials  at  law  ;  the  statute  has  only  brought  the  landlord's 
right  to  sell  the  property  distrained  under  the  control  of 
the  court,  but  has  not  made  the  proceedings  an  original 
action.  It  is  transferred  to  the  court  for  the  single  pur- 
pose of  ascertaining  whether  the  relation  of  landlord  and 

1  Sheetz  v.  Baker,  38  111.  App.  349. 

-  Murr  v.  Glover  et  al.,  34  111.  App.  37:!. 

3  Murr  v.  Glover  et  al  ,  34  111.  App.  373. 

4  First  National  Bank  of  Joliet  v.  Adam  et  al.,  138  111.  483. 

5  Alwood  v.  Mansfield,  33  111.  452. 


233  PROCEEDINGS    FOE    DISTRESS.  [§197. 

tenant  exists,  and  what  sum  was  due  for  rent  when  the 
o-oods  were  seized.1 

In  distress  for  rent,  the  lease  need  not  be  tiled ;  no 
declaration  is  necessary." 

If  the  amount  of  rent  is  fixed  by  a  distress  for  rent,  it 
will  be  binding  on  the  parties  as  to  all  matters  that 
should  have  been  determined  in  that  proceeding.3 

In  a  distress  for  rent,  where  the  defendant' pleads  "no 
rent  in  arrears  "  only,  the  defendant  cannot  recover  judg- 
ment for  damages  in  his  favor  upon  any  state  of  proof. 
To  authorize  this,  he  must  plead  a  set-off  either  specially 
or  give  notice  thereof  under  the  general  issue.4 

The  action  of  replevin  may  be  brought  to  try  the  legal- 
ity of  a  distress  for  rent,  provided  there  is  no  sum  what- 
ever due  for  rent;  but  if  any  sum,  however  small,  is  due 
and  the  distress  is  for  a  greater  sum,  or  is  excessive  in 
regard  to  the  quantity  of  goods  taken,  or  otherwise 
irregular,  the  remedy  must  be  by  case.5 

In  a  proceeding  against  the  original  tenant,  the  land- 
lord cannot  distrain  the  goods  of  the  tenant's  assignee, 
although  thev  formerly  belonged  to  the  tenant  and  are 
found  on  the  demised  premises.6 

To  authorize  a  distress,  the  rent  must  be  certain  and 
specific;  a  landlord  cannot  apportion  rent,  so  as  to 
recover  by  distress,  for  the  value  of  part  of  premises 
occupied,  where  the  rent  has  not  been  fixed.'' 

1  Alwood  v.  Mansfield,  33  111.  452. 

2  Alwood  v.  Mansfield,  33  111  452. 

■  Clevenger  v.  Dunaway,  84  111.  367. 

4  Cox  v.  Jordan,  86  111.  560. 

•  Hare  v.  Stegall,  60  111.  380. 

,;  Howdyshell  et  al.  v.  Gary,  21  111.  App.  288. 

'  Hatfield  v.  Fullerton,  24  111.  27*. 


§§    198,199.]       WARRANT    SUBJECT    TO    LIEN.  233 

In  an  action  of  distress  for  rent,  unless  the  warrant 
contains  an  allegation  or  charge  that  the  defendant,  by 
good  husbandry,  might  have  made  a  better  crop,  evidence 
to  that  effect  is  inadmissible.1 

§  198.  Distress  warrant  subject  to  lieu  of  execution 
already  levied. — A  distress  warrant,  issued  and  placed 
into  the  hands  of  the  sheriff,  after  his  receipt  and  levy 
of  execution  upon  the  goods  and  chattels  of  the  tenant — 
not  crops  grown  or  growing  upon  the  demised  premises 
— does  not  take  precedence  of  the  execution,  and  a  levy 
of  the  distress  warrant  will  be  subject  to  the  prior  liens 
of  the  execution.'2 

Where  property  is  converted  by  the  landlord,  in  a  dis- 
tress proceeding,  such  conversion  does  not  necessarily 
become  a  matter  of  set-off,  which  must  be  interposed  by 
the  tenant  in  the  distress  suit,  under  penalty  of  losing  his 
cause  of  action  for  the  property  so  wrongfully  converted.3 

In  an  action  of  trespass  by  the  tenant  against  his  land- 
lord for  an  illegal  distress,  the  landlord  may  recoup  to 
the  extent  of  any  rent  unpaid,  although  the  rent  may 
not  be  due." 

Knowledge  on  part  of  the  landlord  that  there  was  a 
chattel  mortgage  on  goods,  does  not  deprive  him  of  the 
right  of  levying  his  distress,  or  subject  him  to  punitive 
damages  for  so  doing/' 

§  199.  Interest  of  chattel  mortgagee. — A  mortgagor 

1  Bainter  v.  Lawson,  24  111.  App.  634. 

-  Herron  v.  Gill,  112  111.  247. 

3  Sheetz  v.  Baker,  38  111.  App.  349. 

4Cunneav.  Williams,  11  111.  App.  72. 

1  Mackin  et  al.  v.  Blythe,  35  111.  App.  210. 


234  PEOPEETY    SUBJECT    TO    LEVY.  [§200. 

in  possession  of  mortgaged  chattels  lias  such  an  interest 
in  the  property  as  may  be  seized  on  execution  or  distress 
for  rent.1 

A  person  making  a  levy  upon  mortgaged  goods  in  the 
possession  of  the  mortgagor  is  not  a  trespasser  in  making 
such  levy  and  neither  replevin  in  the  oepit  nor  trespass 
will  lie  for  such  taking." 

As  the  object  of  inquiry,  on  the  trial  of  a  distress  for 
rent,  is  to  ascertain  the  amount  of  rent  due,  any  acts  of 
the  landlord  impairing  the  value  of  the  use  of  the  demised 
premises  may  be  shown  and  the  damages  caused  thereby 
may  be  recouped.3 

The  right  of  the  landlord  to  distrain  for  rent  arises  at 
common  law  and  there  can  be  no  distraint  unless  there 
has  been  an  actual  demise  at  a  certain  fixed  rent.4 

A  mere  paper  levy  and  placing  a  custodian  on  the 
land,  but  not  in  the  house,  is  not  sufficient  in  a  distress 
for  ren  t .  ' 

£  200.  What  property  subject  to  levy — A  distress 
warrant  can  only  be  levied  on  personal  property  of  the 
tenant/ 

The  landlord's  lien  is  of  common  law  growth  and  does 
not  depend  upon  statutory  enactment  for  its  creation. 
Statutes  have  been  enacted  to  regulate  the  right,  but  are 
rather  in  aid  of  than  repugnant  to  the  common  law. 
The  landlord's  lien  and  power  to  distress  are  co-eval  with 

1  Holladay  et  al.  v.  Bartholoma?  et  al.,  11  111.  App.  206. 

2  Holladay  et  al.  v.  Bartholoma?  et  al.,  11  111.  App.  206. 
;  Lynch  v.  Baldwin,  69  111.  210. 

4  Johnson  v.  Prussing,  4  111.  App.  57p. 
6  Johnson  v.  Prussing,  4  111.  App.  57">. 
6  Kassing  et  al.  v.  Keohane,  4  111.  App.  460. 


§   201.]  AMOUNT    CLAIMED    LIMITS    RECOVERY.  -2-W> 

the  earliest  history  of  the  common  law  and  have  main- 
tained their  energy  to  the  present  time.1 

By  the  act  of  1857,  the  common  law  relative  to  pro- 
ceedings for  distress  of  rent  is  so  modified  as  to  authorize 
distress  to  be  made  for  the  period  only  of  six  months 
after  the  expiration  of  the  lease;  and  where  a  distress 
warrant  issues  more  than  six  months  after  rent  has 
become  due  and  the  lease  terminated  and  the  demised 
premises  abandoned,  such  warrant  is  without  authority 
of  law  and  null  and  void.2 

A  landlord  has  a,  lien  and  a  right  to  distress  in  all 
cases  where  rent  is  certain,  whether  the  right  to  distress 
is  reserved  or  not  in  the  lease.3 

A  person  not  a  lessor  or  grantee,  assignee  or  heir,  or 
a  personal  representative  of  the  lessor,  cannot  maintain  a 
distress  for  rent.4 

Where  a  tenant  removes  from  or  abandons  the  leased 
premises,  the  statute  gives  the  landlord  the  right  to  dis- 
tress for  rent  and  also  for  that  to  become  due.  The  ten- 
ant cannot,  by  giving  notice  that  he  intends  to  leave, 
deprive  the  landlord  of  his  right  to  distress/ 

£  201.  Amount  claimed  by  landlord  limits  his 
recovery. — The  amount  claimed  by  the  landlord  in  the 
distress  warrant  fixes  the  limit  of  his  recovery,  lie  is 
not  authorized  to  seize  property  and  sell  it  for  a  greater 
amount  than  that    stated  in  the  warrant,  and  to  sustain 

1  CTHara  v.  Jones,  46  111.  288. 

'-'  Werner  v.  Ropiequet,  44  111.  522. 

<  t'llara  v.  Jones,  46  111.  288. 
4  McGillick  v.  McAllister,  10  111.  App.  40. 

Hare  v.  Stegall.  60  111.  380. 


236  THE    OFFICE    OF    THE    WARRANT.  |    ij   202. 

the  warrant,  he  must  show  on  the  trial  that  he  was 
entitled  to  as  much  rent  as  is  specified  in  the  warrant, 
and  no  more.  The  tenant  can  reduce  the  amount  by 
proving  payment  of  part.  The  landlord  is  strictly  con- 
fined to  the  claim  he  makes  in  the  distress  warrant. 

§  202.  The  office  of  the  warrant. — The  warrant  is 
of  the  nature  of  a  summons  and  declaration,  and  there  is 
no  rule  better  settled,  than  that  it  is  error  to  render 
judgment  for  a  larger  sum  than  that  claimed  in  the  dec- 
laration, whatever  may  be  the  form  of  action.1 

A  replication  to  an  avowry  in  an  action  of  replevin, 
justifying  the  taking  under  a  distress  for  rent  in  arrear. 
which  avers  various  breaches  of  the  contract  of  leasing, 
whereby  the  tenant  sustained  great  damage,  is  fatally 
defective,  if  it  fails  to  aver  that  such  damages  are  equal 
to  or  exceed  the  rent  due.  The  naming  of  several 
amounts  of  damages  which,  when  added  together,  exceed 
the  rent  claimed,  will  not  be  sufficient,  as  the  party  is 
not  bound  to  prove  such  sums  as  laid.  The  pleadings 
should  contain  a  specific  averment  that  the  damages  are 
equal  to  or  greater  than  the  rent  in  arrear. 

Where  a  distress  has  been  replevied,  the  tenant  may 
show  that  there  have  been  breaches  of  the  covenants  or 
agreements  on  the  part  of  the  landlord  which  have  pro- 
duced damages  equal  to  or  greater  than  the  amount  of 
the  rent  due,  and  thus  defeat  the  levy  of  the  distress 
warrant.2 

The  delivery  of  a  distress  warrant  to  an  officer  or  per- 
son, with  directions  to  execute  it,  does  not  render  the 

1  Asay  v.  Sparr.  26  III.  115;  Brown  et  al.  v.  Smith  et  al..  24  111.  197. 

2  Lindlev  v.  Miller.  67  111.  244. 


I  203.]  landlord's  lien  <>\  crops.  231 

landlord  liable  for  the  unauthorized  and  unapproved  acts 

of  the  bailiff  or  his  associates.' 

§  '203.  Landlord's  lien  on  crops A  landlord's  lien 

on  crops  for  rent  is  paramount  to  the  lien  of  an  execu- 
tion. Such  lien  does  not  invest  him  with  the  title,  either 
general  or  special,  it  and  the  right  of  possession  remain- 
ing in  the  tenant,  subject  to  be  divested  by  an  appro- 
priate proceeding  at  law." 

A  landlord  has  no  lien  for  rent  on  property  of  his  ten- 
ant other  than  crops.3 

A  condition  in  a  lease  providing  that  a  lessor  shall 
have  a  valid  and  first  lien  upon  the  property  of  the  lessee 
for  rent,  refers  only  to  property  owned  at  the  making  of 
tlic  lease.4 

The  bona  fide  purchaser  of  farm  crops  from  a  tenant 
takes  them  subject  to  the  lien  of  the  landlord  under  the 
statute  for  unpaid  rent.5 

The  landlord's  statutory  lien  upon  crops  grown  upon 
the  demised  premises  does  not  follow  such  crops  in  the 
hands  of  a  bona  fide  purchaser  without  notice. 

A  lien  may  be  preserved  by  stipulation  in  a  lease  upon 
the  lessee's  interest  in  the  demised  premises  and  upon 
the  buildings  and  improvements  thereon,  to  secure  the 
payment  of  the  rent,  and  such  lien  will  be  good  and 
enforcible    between    the  parties   and  all    persons  except 

1  Dow  v.  Blake,  15  111.  App.  89. 
-'  O'Malia  et  al.  v.  Glynn,  42  111.  App.  51. 
:;Felton  et  al.  v.  Strong,  37  111.  App.  58. 
4  Borden  v.  Croak,  33  111.  App.  389. 
'Finney  v.  Harding.  32  111.  App.  98. 
"  Howe  v.  Clark,  23  111.  App.  145. 


238  TRIAL    IN    DISTRESS    CASES.        [§§204,    205. 

creditors  and  persons  without  notice,  although  the  lease 
be  not  acknowledged  or  recorded.' 

§  20£.  The  trial  in  distress  cases. —  In  a  distress  for 
rent,  it  is  error  to  render  judgment  on  the  finding  and 
award  a  special  execution.  The  court  should  ascertain  if 
the  relation  of  landlord  and  tenant  existed;  secondly,  if 
so,  find  the  amount  of  rent  due;  and,  thirdly,  have  it 
certified  to  the  bailiff  making  the  levy,  which  certificate 
constitutes  his  warrant  for  selling  the  property  and  apply- 
ing the  proceeds  to  the  payment  of  the  rent  found  due." 

§  205.  Cases  in  illustration. —  In  a  replevin  by  a  land- 
lord for  100  acres  of  corn,  taken  on  two  judgments  against 
a  tenant,  claiming  his  lien  as  superior  to  that  of  the  exe- 
cutions. (1 879.)  The  court  held,  the  lien  given  by  statute 
i  Rev.  Stat.  1874,  p.  661,  §  31)  on  crops  grown  or  growing 
on  the  demised  premises,  does  not  grow  out  of  a  levy  of 
a  distress  warrant.  It  is  a  paramount  lien  of  which  every 
person  must  take  notice,  and  which  can  be  lost  only  by 
waiver  or  failing  to  enforce  it  at  the  proper  time.5 

Where  a  landlord  took  possession  of  crops  (corn  in  a 
crib)  for  rent  of  the  year,  without  levying  a  distress 
warrant  on  it  or  doing  anything  further  to  enforce  his 
lien ;  held,  he  had  a  right  to  the  same  as  against  a  pur- 
chaser from  the  tenant  to  the  extent  of  the  rent.4 

( )n  its  being  claimed  that  the  landlord  had  only  a  mere 

Webster  et  al.  v.  Nichols  et  al..  104  111.  160. 
2  Kruse  v.  Kruse,  68  111.  188. 
Thompson  v.  Mead,  67  111.  395;  Prettyman  v.  Unland  etal.,  77  111. 
206;  Wetsel  v.  Mayers  et  al.,  91  111.  497. 

4 Hunter  et  al.  v.  Whitfield  et  al.,  89  111.  229. 


8  205.]  CASKS    IN     ILLUSTRATION.  239 

lien  under  the  statute  and  did  not  have  the  right  of  pos- 
session unless  he  obtained  it  by  the  levy  of  a  distress  war- 
rant, the  court  said:  "There  is  nothing  in  the  statute 
which  indicates  that  the  levy  of  a  distress  warrant  is 
essential  to  a  right  of  possession  of  the  property  on  which 
the  lien  exists  or  that  that  is  the  exclusive  remedy  for  the 
assertion  or  protection  of  the  landlord's  lien."  ' 

Under  sec.  S,  ch.  60,  R.  S.  1845  (335),  providing 
"Every  landlord  should  have  a  lien  upon  the  crops 
growing  or  grown  *  *  *  in  any  year,  for  rent 
that  shall  accrue  for  such  year,"  the  court  held  that 
where  a  crop  is  sown  in  the  fall  of  one  year  and  is 
harvested  the  next  summer,  having  grown  partly  in  two 
years,  the  rent  of  each  year  becomes  a  lien  on  it,  which 
the  landlord  may  enforce  by  distress.2 

A  landlord  having  a  lien  on  growing  or  grown  crops, 
prior  to  that  of  an  execution,  is  entitled  to  the  possession 
of  the  crops  and  may  maintain  replevin  against  the  officer 
seizing  them  without  regard  to  any  proceedings  by  distress. 

In  this  case,  property  subject  to  the  lien  of  the  landlord 
(on  crops)  had  been  levied  on  and  sold  under  an  execution 
against  the  tenant.  Thereafter,  the  landlord  took  the 
property  by  distress  for  the  rent  and  sold  it,  and  it  was 
held  that  the  levy  and  sale  under  the  execution  were  sub- 
ject to  the  landlord's  lien  upon  the  grain  ;  that  such  sale 
under  the  execution  in  no  wise  affected  the  lien,  and  the 
purchaser  only  acquired  the  right  to  retain  the  overplus 
after  satisfying  the   rent ;    and   that  the  landlord  could 

'Miller  v.  James,  36  111.  399;  67  111.  395. 
-  Wetsel  v.  Mayers  et  al.,  91  111.  497. 


lM«>  (ASKS     IN    ILLUSTRATION.  [§205. 

still,  notwithstanding  the  sale  on  the  execution  proceed 
by  distress  to  enforce  his  lien  against  the  grain.1 

The  statute  gives  a  landlord  a  lien  on  crops  growing  or 
grown  on  demised  land  in  any  year  for  rent  of  that  year. 

This  lien  is  not  confined  to  any  particular  crop,  but 
embraces  all  the  crops  or  any  portion  of  them  no  matter 
on  what  particular  part  of  the  premises  raised.  It  is 
created  by  law  and  does  not  grow  out  of  the  levy  of  a 
distress  warrant,  and  is  paramount  to  the  lien  of  an 
attachment,  and  can  be  lost  only  by  waiver  or  failing  to 
enforce  it  at  the  proper  time.'2 

Where  a  farm  was  demised,  of  an  house  and  land  in  two 
townships,  separated  by  a  public  road,  the  house  at  a 
monthly  cash  rent  and  the  farm  land  on  shares,  the  con- 
tract being  entire,  and  on  an  attachment  levied  on  the 
tenant's  crops  after  the  rent  for  the  land  on  which  it 
grew  was  paid;  held,  the  landlord  had  a  lien  on  the 
crops  for  house  rent  and  uncultivated  premises  prior  to 
the  attachment,  and  its  precedence  did  not  depend  on  the 
levy  of  a  distress  warrant  or  any  otner  proceeding  by 
him. 

In  an  ordinary  action  for  rent  under  a  lease,  damages 
sustained  by  the  tenant  by  a  breach  of  the  lease  by  the 
landlord,  may  be  recouped  by  the  tenant.  And  the  same 
rule  applies  in  a  proceeding  by  distress  for  rent.3 

Where  a  distress  has  been  replevied,  the  tenant  may 
show  breaches  of  the  covenants  or  agreements  of  the 
landlord,    which    have    produced    damages    equal   to    or 

1  Miles  v.  James  et  al. ,  36  111.  399. 
-Thompson  v.  Mead  et  al.,  67  111.  395. 
3  Lindley  v.  Miller.  67  111.  244. 


§205.]  CASKS    IN     II.LUSTKATIoN.  24  1 

greater  than  the  rent  due  and  thus  defeat  the  lien  of  levy 
of  the  distress  warrant.1 

Where,  when  property  was  distrained  for  rent,  and 
the  amount  due  ascertained  b}^  a  justice,  the  constable 
making  the  distress,  sold  the  property  without  first  hav- 
ing it  appraised,  as  required  by  the  statutes,  and  after 
tender  of  rent  and  costs,  whereupon  the  tenant  brought 
an  action  with  two  counts  in  case  and  one  in  trover; 
held,  trover  will  lie  in  such  a  case;  the  statute  requires 
the  property  to  be  appraised  before  it  can  be  sold,  and 
the  requirement  must  be  observed." 

The  landlord's  lien  on  crops  growing  or  grown  on  the 
premises  in  any  year  for  the  year's  rent,  is  not  defeated 
by  a  sale  of  such  crops  or  any  portion  thereof  by  the 
tenant  to  a  person  having  notice  of  the  fact  of  the  ten- 
ancy, and  that  they  were  raised  on  the  demised  premises, 
but  the  landlord  may  enforce  his  lien  upon  such  crops  as 
against  such  purchaser.3 

The  landlord's  lien  attaches  on  the  crops  grown  on  the 
premises  in  any  given  year  for  the  year's  rent,  from  the 
time  of  the  commencement  of  their  growth,  whether  the 
rent  is  then  due  or  not. 

Where  a  purchaser  of  corn  from  a  tenant  knows  the 
fact  of  the  tenancy,  and  that  his  vendor,  as  such  tenant, 
Las  raised  the  corn  on  the  demised  premises,  this  will  be 
notice  to  him  of  any  lien  the  landlord  may  have  on  the 
same  for  unpaid  rent,  and  what  is  sufficient  to  put  a  pur- 

1  Lindley  v.  Miller,  67  111.  244. 

-  Hare  v.  Stegall,  60  111.  380;  Lindley  v.  Miller,  67  111.  244:  Streeter 
v.  Streeter,  33  111.  155. 

3 1  Chitty's  Pleadings,  p.  188,  6  Am.  Ed. :  Hare  v.  Stegall,  60  111. 
380. 

16 


242  (ASKS     IX     ILLUSTRATION.  [§205. 

chaser  on  inquiry  is  good  notice  of  whatever  the  inquiry 
would  disclose.' 

A  landlord  having  the  statutory  lien  cannot,  in  the 
absence  of  a  levy  of  a  distress  warrant,  maintain  re- 
plevin." 

If  the  eoods  of  a  tenant  are  seized  under  execution  or 
attachment,  the  landlord's  lien  for  rent  is  superior  and 
will  hold  the  property.  The  statutory  lien  in  favor  of 
the  landlord  is  superior  to  other  junior  liens  and  may  be 
enforced  against  all  but  prior  liens,  and  lona  fide  pur- 
chasers without  notice  have  superior  liens.3 

Where  rent  was  to  be  paid  in  wheat,  to  be  delivered  to 
the  landlord  when  threshed  in  the  granary,  the  landlord 
has  no  specific  part  of  such  grain  that  may  be  attached 
and  sold,  until  the  same  is  so  set  apart  to  him.4 

The  lien  of  the  landlord  for  rent  is  usually  created  by 
statute  and  the  extent  of  such  lien  and  methods  of 
enforcing  it  are  regulated  by  statute/' 

Where  a  farm  is  leased  upon  shares,  if  the  relation  of 
landlord  and  tenant  existed,  the  property  in  the  crop  is 
in  the  tenant  until  harvested  and  divided;  until  such 
division,  it  cannot  be  levied  upon  as  the  property  of  the 
landlord.  But  in  case  the  parties  are  tenants  in  common 
of  the  crop,  the  interest  of  the  landlord  may  be  levied 
upon  before  division.'1 

1  Watt  v.  Scofield,  70  111.  261. 

2  O'Malia  et  al.  v.  Glynn,  42  111.  App.  51. 

3  CTHara  v.  Jones.  46  111.  288. 
4Koob  v.  Ammann,  0  111.  App.  160. 

•Prettyman  v.  Unland  et  al..  77  111.  206;  Webster  et  al.  v.  Nichols 
et  al..  104  111.  160;  Wetsel  v.  Mayers  et  al.,  91  111.  497;  Hunter  et  al. 
v.  Whitfield,  89  111.  229;  Thompson  v.  Mead  et  al.,  67  111.  395. 
0  Hansen  v.  Dennison  et  al. .  7  111.  App.  73. 


§206.]  PRACTICE    IN     DISTRESS    FOR    RENT.  243 

§  206.  Practice  in  distress  for  rent The  action  by 

distress  is  for  rent  due  only,  and  unless  the  defendant 
opens  the  door  to  the  investigation  of  other  matters  by 
pleading  a  set-off,  the  rent  alone  is  the  proper  subject 
matter  of  the  suit,  and  to  this  the  proof  should  be  con- 
fined. But  if  the  tenant  pleads  a  set-off,  the  landlord, 
by  way  of  replication,  may  plead  any  matter  of  defense, 
such  as  a  set-off,  the  same  as  if  he  were  sued  as  defend- 
ant; but  the  landlord,  in  such  case,  cannot  recover  for 
any  excess  of  his  set-off  over  that  of  the  tenant.  The 
prayer  for  judgment  in  such  replication  should  be  as 
claimed  in  the  declaration.1 

In  an  action  of  trespass  against  the  landlord,  for  tak- 
ing the  property  of  the  tenant  under  a  distress  warrant, 
it  is  error  to  instruct  the  jury,  that  if  the  defendant 
took  more  than  was  necessary  to  pay  the  rent 
then  due,  or  claimed  more  rent  than  was  due,  the 
distress  was  illegal  as  to  the  excess  of  property 
taken  and  for  the  rent  not  then  due.  The  landlord 
is  permitted  to  make  a  reasonable  distress,  and  he  is 
not  bound  to  confine  himself  to  the  precise  amount  of 
rent  due.  If  lie  were  knowingly  to  claim  more  rent  than 
was  due  for  the  purpose  of  oppression  and  wrong  and 
levy  an  amount  sufficient  for  its  payment,  he  would  be 
guilty  of  willfully  and  maliciously  making  an  excessive 
levy ;  but  a  mere  mistake  in  judgment  as  to  the  value  of 
the  property  seized  or  a  want  of  knowledge  of  the  sum 
due,  cannot  render  him  a  trespasser.2 

Where  any  portion  of  the  rent  remains  due  and  unpaid, 

1  Cox  v.  Jordan,  86  111.  560. 

2  Harms  v.  Solem  et  al.,  79  111.  460. 


244  PRACTICE    IN    DISTRESS    FOR    RENT.  [§   206. 

the  landlord  has  an  undoubted  right  to  distrain.  If  the 
distress  is  excessive  or  oppressive,  the  landlord  may  be 
liable  in  an  action  on  the  case  for  damages,  but  this  will 
not  render  the  distress  illegal,  so  as  to  justify  replevin  of 
the  property.1 

A  tenant  upon  a  proceeding  by  distress  may  show,  that 
he  was  evicted  from  a  part  of  the  premises,  or  that  he 
was  disturbed  in  his  possession.2 

1  Lindley  v.  Miller,  67  111.  244. 
-Wade  v.  Halligan,  16  111.  507. 


}§  207,  -208.]  definition.  2 4:. 


CHAPTEE  XX. 

EVICTION. 

Section  207.  Definition. 

208.  Actual  eviction. 

209.  Constructive  eviction. 

210.  Cases  in  illustration. 

211.  Effect  and  consequences  of  eviction. 

212.  Taking  from  tenant  part  of  premises. 

213.  To  discharge  the  tenant  from  rent,  he  must  abandon 

the  premises. 

214.  Particular  cases  stated. 

215.  Threats  by  landlord  against  tenant. 

216.  Suspension  of  rent. 

217.  Damages  for  eviction. 

§  207.  Definition Eviction   is   the   taking  from  the 

lessee  of  the  whole  or  a  substantially  valuable  part  of  the 
leased  premises. 

The  essence  of  eviction,  according  to  its  strict  mean- 
ing, consists  in  the  dispossession,  and  not  in  the  with- 
holding of  possession ;  in  the  taking  away  from  the  ten- 
ant the  whole  or  some  part  of  the  demised  premises  of 
which  he  was  in  possession.1 

§  208.  Actual  eviction Acts  amounting  to  an  evic- 
tion of  the  tenant  must  be  something  of  a  grave  and 
permanent  character  done  by  the  landlord,  clearly  indi- 
cating an  intention  on  his  part  that  the  tenant  should  no 
longer  continue  to  hold  the  premises.2 

1  Peck  v.  Hiller,  31  Barb.  R.  117;  Etheridge  v.  Osborne,  12  Wend. 
N.  Y.  529. 

2  Hayner  et  al.  v.  Smith  et  ux. ,  63  111.  430. 


246  ACTUAL    EVICTION.  |    §   208. 

A  forcible  expulsion  is  not  necessary  to  constitute  an 
eviction  ;  but  any  act  on  the  part  of  the  landlord,  done  in 
violation  of  the  rights  of  the  tenant  and  without  his  con- 
sent, and  which  deprives  him  of  the  beneficial  enjoyment 
of  the  premises,  amounts  to  an  eviction.' 

The  lessee  may  be  evicted,  not  only  by  the  taking  from 
him  of  a  portion  of  the  land  itself,  but  by  interference 
with  a  privilege  appertaining  to  the  premises,  such  as 
an  incorporeal  hereditament ;  this  will  also  constitute  an 
eviction." 

An  eviction  consists  of  taking  from  a  tenant  some  part 
of  the  demised  premises  of  which  he  has  possession.  An 
act  of  permanent  character  done  by  the  landlord  in  order 
to  deprive,  and  which  had  the  effect  of  depriving  the 
tenant  of  the  use  of  the  thing  demised,  or  of  part  of  it, 
will  amount  to  an  eviction.  An  actual  eviction  suspends 
the  rent,  but  does  not  terminate  the  lease.  A  construct- 
ive eviction  may  be  by  some  acts  done  with  the  intention, 
and  which  have  the  effect  of  essentially  interfering  with 
the  tenant's  beneficial  enjoyment  of  the  premises 
involved,  or  some  part  thereof:  but  in  order  that  such 
acts  shall  operate  as  an  eviction,  they  must  be  of  such 
character  as  warrant  and  are  followed  by  the  tenant  giv- 
ing up  the  possession ;  and  rent  will  not  be  suspended, 
unless  the  tenant  removes  from  the  premises  in  question.3 

Eviction  by  the  lessor  may  be  either  actual  or  con- 
structive. 

A  lessor  would  commit  actual  eviction  should  he  cause 

1  Price  v.  Pittsburgh  &  F.  W.  &  C.  R.  R.  Co..  34  111.  13. 
s  Peck  v.  Hiller,  24  Barb.  R.  178. 
Patterson  et  al.  v.  Graham,  40  111.  App.  399. 


§  201*.  |  CONSTRUCTIVE    EVICTION.  247 

the  lessee  to  be  expelled  from  the  premises,  as  being  the 
keeper  of  a  disorderly  house,  and  should  then  put  a  new 
tenant  in  the  premises.1 

§209.  Constructive  eviction. —  A  constructive  evic- 
tion is  committed  when  the  landlord  so  interferes,  or 
others  over  whom  he  possesses  control,  so  interfere  with 
the  tenant's  enjoyment  of  the  premises  that,  although 
the  tenant  is  neither  physically  expelled  nor  excluded, 
yet  the  law  considers  him  justified  in  leaving,  and  he 
actually  does  leave. 

Thus,  the  lessee  of  a  second  storv  of  a  building'  pur- 
sued  the  profession  of  dentistry,  having  reserved  that 
privilege  in  his  lease.  The  landlord's  family  appear  to 
have  determined  to  do  what  they  could  indirectly  to 
render  the  practice  of  his  profession  on  the  premises 
impracticable.  They  accordingly  muffled  the  door  bell, 
so  that  his  patients  were  sometimes  obliged  to  employ 
fifteen  or  twenty  minutes  or  more  in  ringing  and  waiting 
before  effecting  an  entrance,  and,  in  some  instances,  left 
without  succeeding  in  obtaining  admittance,  and  also 
littered  the  stair  carpet  with  nut-shells,  dirt,  and  other 
filth,  perpetrated  other  annoyances  of  like  nature  and 
addressed  impertinent  language  to  persons  visiting  the 
tenant  on  business.  The  tenant  and  his  family  were  sub- 
jected to  abusive  language  and  other  annoyances, 
"petty,"  said  the  court,  "in  their  detail  and  taken 
singly,  but,  in  the  aggregate,  sufficient  to  render  them 
very  uncomfortable  and  unhappy.** 

The  casual  occupation  by  the  landlord  of  a  small  por- 
tion of  the  premises,  will  not,  in  every  instance,  be  an 

1  Hope  v.  Eddington,  Lalor  R.  43. 


248  CONSTRUCTIVE    EVICTION.  [  §  209. 

eviction.  Thus,  it  would  not  be  an  eviction  for  the  land- 
lord to  pile  firewood  on  a  portion  of  the  leased  land,  pro- 
vided he  would  not,  by  doing  so,  interfere  with  the  sub- 
stantial enjoyment  of  the  premises. 

These  and  similar  facts  have  been  considered  insufficient 
to  constitute  an  eviction  justifying  the  tenant  in  abandon- 
ing the  premises. 

So  if  the  landlord  use  for  immoral  purposes,  a  portion 
of  the  house  not  let  to  the  tenant,  and  the  latter  be  seri- 
ously disturbed  by  the  loudly-riotous  and  obscene  behavior 
of  the  landlord  and  his  friends,  he  may,  it  has  been  held 
by  the  highest  court  of  the  state  of  New  York,  abandon 
the  premises  and  claim  the  benefit  of  a  constructive  evic- 
tion. This  latter  form  of  constructive  eviction  is  some- 
times called  moral  eviction.1 

If  a  railroad  company  enters  into  possession  of  a  part 
of  the  demised  premises  by  permission  of  the  landlord,  it 
would  amount  to  an  eviction  of  that  part.2 

The  taking  possession  of  hotel  furniture  by  the  land- 
lord under  a  chattel  mortgage,  given  by  a  tenant  to  secure 
the  payment  of  rent  due  and  to  become  due,  upon 
default  of  its  condition,  is  not  an  eviction  of  the  tenant 
by  the  landlord  so  as  to  terminate  the  tenancy  and  stop 
the  rent.3 

So,  if  the  tenant  yields  possession  of  the  demised  prem- 
ises, in  consequence  of  a  judgment  for  the  recovery  of 
possession,  to  the  person  adjudged  to  be  the  rightful 
owner  of  the  paramount  title,  it  is  an  eviction.  A  judg- 
ment alone,  however,  is  not  sufficient.  The  possession 
must    be    disturbed    or   yielded.      This    distinction    will 

1  Hope  v.  Eddington.  Lalor  R.  43. 

-  Halligan  r.  Wade.  21  111.  470. 

3  Morris  v.  Tillson  et  al.,  81  111.  607. 


§    210.]  CASKS     IN     ll.I.rst'LWI ION.  249 

reconcile  the  authorities,  which  otherwise  may  seem  con- 
flicting. The  rule  gathered  from  all  the  authorities 
seems  to  be,  that  a  person  cannot  remain  in  possession  of 
the  premises  and  still  claim  that  he  has  been  turned  out; 
nor,  when  the  judgment  of  a  competent  court  has  deter- 
mined that  he  shall  deliver  possession  to  a  particular 
person,  is  he  required  to  wait  until  he  is  forcibly  ejected.1 

;j  210.  Cases  in  illustration. — Wrongful  acts  of  the 
landlord  do  not  amount  to  an  eviction  in  law,  when 
there  is  neither  actual  nor  constructive  expulsion  of  the 
tenant." 

Acts  of  the  landlord  in  interference  with  the  tenant's 
possession,  to  constitute  an  eviction,  must  clearly  indi- 
cate an  intention  on  the  part  of  the  landlord  that  the 
tenant  shall  no  longer  continue  to  hold  the  possession.'" 

There  is  no  constructive  eviction  without  a  surrender 
of  the  possession.  A  tenant  cannot  remain  in  possession 
and,  when  sued  for  the  rent,  sustain  a  plea  of  eviction 
by  proof  that  there  were  circumstances  which  would 
have  justified  him  in  leaving  the  premises.  The  acts  of 
interference,  if  acted  upon  by  the  tenant  by  his  leaving 
the  premises,  may  amount  to  an  eviction  ;  yet,  if  he  still 
continues  to  remain  in  possession,  he  would  be  liable  for 
the  rent.4 

A  tenant  will  not  be  held  to  have  been  evicted  Avhere, 

!  Home  Life  Ins.  Co.  v.  Sherman,  46  N.  Y.  370. 

2  Bennett  v.  Bittle,  4Rawle,  Pa.  399;  Campbell  v.  Shields,  11  How 
Pr.  N.  Y.  165. 

3  Morris  v.  Tillson  et  al.,  81  111.  607;  Hayner  et  al.  v.  Smith  et  ux., 
63  111.  430. 

4  Boston  R.  R.  Co.  v.  Ripley,  13  Allen.  Mass.  241;  Jackson  v.  Eddy. 
12  Mo.  209:  Elliott  v.  Aikin,  45  N.  H.  30. 


250  casks    IX    [LLTJSTKATION.  [§210. 

notwithstanding  there  may  have  been  disturbances,  he 
has  continued  to  remain  in  possession  of  the  entire  prem- 
ises during  the  full  term  of  his  lease.  An  eviction  can- 
not take  place  without  an  actual  expulsion  or  an  aban- 
donment of  the  whole  or  a  part  of  the  premises.' 

Whether  the  acts  of  the  landlord  amount  to  an  eviction 
or  not,  is  a  question  of  fact  for  the  jury,  in  consideration 
of  all  the  facts  and  circumstances.  The  temporary  inter- 
ference with  the  enjoyment  of  the  premises  occasioned 
by  acts  of  the  landlord  in  putting  in  a  water-pipe,  pump 
and  sink  in  an  upper  room  of  the  demised  premises, 
without  the  tenant's  consent,  does  not  amount  to  an 
eviction." 

The  renting  of  a  reserved  part  of  the  same  premises  to 
another  for  purposes  that  destroy  their  usefulness  to  the 
tenant  upon  whom  a  distress  is  levied,  will  amount  to 
an  eviction,  whether  the  purposes  for  which  they  are 
rented  are  lawful  or  unlawful.3 

Where,  under  an  agreement,  the  demise  was  of 
the  farming  lands  described  and  mentioned  in  the 
lease,  together  with  the  right  to  mine,  dig,  extract 
and  carry  away  coal  from  the  premises,  and  with 
the  enjoyment  and  occupation  of  so  much  of  the  sur- 
face of  said  lands  as  might  be  necessary  to  carry  on 
the  mining-of-coal  business,  held,  that  the  farming  land 
was  as  definite  and  certain  as  the  right  to  mine  for  coal, 
and  that  if  the  grantor  in  said  agreement  prevented  the 
grantee  from  using  the  farming  land,  it  would  amount  to 
an   eviction.     A   plea  setting  up  that  the  grantor   had 

1  DeWitt  v.  Pierson,  122  Mass.  8;  Gilhooley  v.  Washington,  4  N. 
Y.  217. 

-  Lynch  v.  Baldwin,  69  111.  210. 
3Halligan  v.  Wade,  21  111.  470. 


§    211.1  EFFECT    01     EVICTION.  251 

prevented  the  grantee  from  using  such  farming  hinds  was 
a  good  plea,  and  it  was  error  to  sustain  a  demurrer  to  it.1 
Where  a  tenant  in  possession  is  ordered  by  the  sheriff 
having  a  writ  of  restitution  based  upon  a  judgment 
against  the  landlord,  to  vacate  the  premises  described  in 
the  writ,  and  he  and  his  family  leave  the  premises  and 
commence  to  take  their  goods  away,  and  then  the  party 
entitled  to  possession  under  the  writ  executes  a  lease  to 
such  tenant  and  permits  him  to  retain  possession  under 
him.  there  is  such  an  eviction  by  judgment  of  court  as 
excuses  the  tenant  from  the  payment  of  rent  to  the  first 
landlord.2 

§  211.    Effect  and  consequences  of  eviction. —  An 

eviction  in  fact  or  in  effect,  which  renders  the  premises 
useless,  may  prevent  a  recovery  of  rent.3 

Eviction  of  a  tenant  by  the  landlord  or  a  stranger 
before  the  end  of  the  term,  exonerates  the  tenant  from 
the  payment  of  rent.4 

When  the  landlord  forbids  an  under  tenant  to  pay  rent 
and  collects  the  same  himself,  this  will  amount  to  an 
eviction  of  his  tenant  and  exonerate  him  from  the  pay- 
ment of  rent  after  such  act. 

An  eviction  of  the  tenant  by  the  landlord  or  a  stranger 
at  any  time  during  the  term,  will  discharge  the  tenant 
from  the  further  payment  of  rent,  and  any  act  of  the 
landlord  which  renders  the  lease  unavailing  will  exonerate 

1  Walker  et  al.  v.  Tucker  et  al.,  70  111.  527 
-  Montanye  v.  Wallahan,  84  111.  355. 

3  Halligan  v.  Wade.  21  111.  470. 

4  Wright  v.  Lattin  et  al.,  38  111.  293. 


252  TAKING    PART    OF    PREMISES.        [§§212,213. 

the  tenant  from  its  terms  and  conditions,  and  he  may 
abandon  it.1 

Where  a  lessee  is,  by  his  lessor,  wrongfully  evicted 
from  a  portion  of  the  demised  premises,  he  is  thereby 
excused  from  the  payment  of  any  of  the  rent,  although 
he  remains  in  possession  of  the  remaining  portion  of  the 
premises  to  the  end  of  the  term.2 

§  212.  Taking-  from  tenant  part  of  premises. — If  a 

tenant  loses  the  benefit  of  any  portion  of  the  demised  prem- 
ises by  the  act  of  the  landlord,  rent  is  thereby  suspended. 
The  act  of  the  landlord  must  be  something  more  than  a 
mere  trespass  to  have  this  effect;  it  must  be  something 
of  a  permanent  character,  done  with  the  intention  of 
depriving  the  tenant  of  the  enjoyment  of  the  premises.3 

It  is  no  defense  to  an  action  for  rent  that  the  lessee 
never  took  possession,  unless  he  was  deprived  of  posses- 
sion by  the 'lessor;  but  rent  ceases  in  case  the  tenant  is 
deprived  of  possession  by  the  landlord  or  another  holding 
paramount  title.4 

Eviction  is  not  a  bar  to  rent  that  had  previously 
accrued.5 

|  213.  To  discharge  the  tenant  from  rent,  he  must 
abandon  the  premises. — ''Where  a  tenant  is  evicted 
from  the  demised  premises,' before  his  term  has  expired, 
by  his  landlord  or  any  one  claiming  under  or  through 
him,  or  by   one  under  title  paramount   to   that  of    the 

1  Leadbeater  v.  Roth,  25  111.  587;  Halligan  v.  Wade,  21  111.  470. 
-  Hayner  et  al.  v.  Smith  et  ux„  63  111.  430. 
3  Lynch  v.  Baldwin,  69  111.  210. 
1  Field  et  al.  v.  Herrick  et  al.,  10  111   App.  591. 
(h-ommes  et  al.  v.  St.  Paul  Trust  Co.  et  al.,  47  111.  App.  568. 


§213.]  MUST    ABANDON    OR    I'AV     RENT.  253 

landlord,  no  recovery  can  be  had  for  rent  accruing  after 
eviction.  In  case  a  tenant  should  be  evicted,  then,  and 
not  until  then,  will  he  be  in  a  position  to  invoke  the  aid 
of  the  court  in  his  behalf.  In  the  case  under  considera- 
tion the  court  said,  '  No  eviction  has  occurred  ;  it  will  be 
time  enough  to  complain  when  they  have  been  evicted. '  ; 
The  fact  that  the  landlord  has  suffered  a  decree  to  be 
taken  for  the  sale  of  the  demised  premises  in  a  proceed- 
ing to  enforce  a  mechanic's  lien,  in  violation  of  his  con- 
tract to  defend  the  suit,  upon  which  the  premises  may  be 
sold  and  the  tenant  evicted,  presents  no  ground  for  resist- 
ing the  collection  of  rents  by  the  landlord.1 

Although  a  tenant  evicted  from  a  part  of  the  demised 
premises  is  not  under  obligation  to  pay  rent  for  the  part 
he  occupies,  as  the  landlord  will  not  be  permitted  to 
apportion  the  rent  by  his  own  wrong,  yet  if  the  tenant, 
at  the  expiration  of  the  term,  gives  his  note  for  the  rent 
of  the  premises,  it  may  be  collected.2 

An  eviction  of  the  whole  premises  by  another  than  the 
landlord,  under  paramount  title,  discharges  the  rent. 
An  eviction  of  only  a  part  of  the  premises  by  a  stranger 
will  authorize  an  apportionment  of  the  rent,  but  if  the 
eviction  is  by  the  landlord  and  the  tenant  is  kept  out  of 
possession  of  that  part,  the  whole  rent  will  be  discharged.3 

A  tenant  cannot  retain  the  possession  of  the  leased 
premises  and  refuse  the  payment  of  rent  on  the  ground 
of  a  mere  constructive  eviction.     The  question   of  evic- 

1  Leopold  et  al.  v.  Judson  et  al.,  75  111.  536. 
8  Anderson  et  al.  v.  The  Chicago  M.  &  F.  I.  Co.,  21  111.  601. 
3Halligan  v.  Wade,  21  111.  470:  3  Kent,  464;  1  Sanders,  Eep.  204, 
note  2. 


254  PARTICULAR    CASES    STATED.  |    §   214. 

tion  or  no  eviction  depends   upon  the  circumstances  and 
is  in  all  cases  to  be  decided  by  the  jury.1 

Even  if  the  landlord  has  no  title,  the  tenant  cannot 
complain  till  evicted." 

The  eviction  of  a  lessee  from  the  demised  premises  under 
a  paramount  title  will  discharge  him  from  the  payment  of 
any  part  of  the  rent  which  may  fall  due  by  the  terms  of 
the  lease  after  such  an  eviction.3 

§  214.  Particular  cases  stated. — Where  a  judgment 
in  forcible  entry  and  detainer  is  relied  on  as  evidence  that 
the  tenant  had  been  evicted  and  the  lease  terminated, 
mere  verbal  testimony  that  the  landlord  had  recovered 
such  a  judgment,  without  showing  service  on  or  appear- 
ance by  the  tenant  to  the  suit,  is  not  sufficient  to  prove 
a  binding  judgment  that  will  establish  the  termination  of 
a  lease.4 

Where  a  tenant  yields  possession  to  a  purchaser,  at  a 
foreclosure  sale,  of  the  landlord's  interest,  it  will  consti- 
tute an  eviction  for  all  purposes.5 

If  the  grantee  of  a  lessor  lets  to  another  during  the 
unexpired  term,  who  evicts  the  first  tenant,  such  grantee 
becomes  responsible  for  the  act.6 

The  failure  of  a  landlord  to  furnish  material  for  repairs, 
as  agreed  in  the  lease,  does  not  amount  to  an  eviction  of 
the  tenant/ 

1  Patterson  et  al.  v.  Graham,  140  111.  531;  Hayner  et  al.  v.  Smith 
et  ux.,  63  111.  430:  Lynch  v.  Baldwin.  69  111.  210. 

2  Ankeny  v.  Pierce,  1  III   262. 

Stubbings  v.  The  Village  of  Evanston,  136  111.  37. 
4  Cheney  v.  Bonnell,  58  111.  268. 
•  Conley  v.  Schiller,  34  N.  Y.  Sup.  473. 

Wright  v.  Lattin  et  al.,  38  111.  293. 
"  McFarlane  v.  Pierson,  21  111.  App.  566. 


§215.]  THREATS    A.GAINST    TENANT.  255 

Whether  the  premises  can  be  abandoned,  and  pay nt 

of  renl  successfully  resisted,  when  it  is  not  the  conducl 
of  the  landlord  and  his  guests,  but  that  of  other  tenants, 
which  is  thus  objectionable,  the  landlord,  although  aware 
of  their  conduct,  taking  no  measures  to  prevent  its  con- 
tinuance, seems  to  be  left  in  doubt ;  but  some  of  the  lower 
courts  have  held  that,  under  such  circumstances,  the 
landlord  having  leased  without  the  intent  of  causing  a 
violation  of  law,  and  having  no  connection  with  the 
improper  acts,  payment  of  rent  cannot  be  excused.1 

§  215.  Threats  by  landlord  against  tenant. — Threats 
by  a  landlord,  and  conduct  indicating  desire  that  the  ten- 
ancy terminate,  may,  in  an  aggravated  case,  justify  aban- 
donment of  the  premises  by  the  tenant. 

Thus,  under  an  agreement  by  the  owner  to  execute  a 
lease,  certain  persons  had  entered  into  possession  of  the 
premises,  and  the  owner,  having  subsequently  prepared  a 
lease  not  in  accordance  with  the  previous  agreement,  upon 
their  declining  to  execute  it  in  the  form  in  which  it  had 
been  drawn  up,  told  them  that  '"they  must  sign  this 
lease  or  uone;  that  they  were  not  his  tenants,  and  if  they 
did  not  sign  it  he  would  make  it  hot  for  them  ;  that  he 
had  them  in  his  power,  and  if  they  did  not  sign  it  he 
would  turn  them  into  the  street.".  They  remaining 
unmoved  by  his  threats,  he  posted  a  notice  that  the 
premises  were  to  let,  offered  them  to  various  persons, 
stating  that  the  occupants  were  no  tenants  of  his,  and 
that  he  would  show  them  that  thev  would  have  to  so. 
It  was  held  that  the  tenants,  under  these  circumstances, 

1  Gilhooly  v.  Washington.  3  Sandf.  R.  330;  Townsend  v.  Gilsey,  7 
Ab.  Pr.  (N.  S.)  59. 


256  SUSPENSION    OF    RENT.  |    §  216. 

might  abandon  the  premises,  and  that  they  were  not 
liable  to  pay  rent  for  the  period  during  which,  in  spite  of 
the  lessor's  conduct,  they  had  occupied.1  But  if  a  land- 
lord, under  a  mistaken  impression  that  the  term  of  the 
lease  would  expire  at  a  date  earlier  than  it  was  actually 
to  end,  should  enter  into  negotiations  to  lease  to  other 
persons,  and  should  post  a  bill  on  the  premises  announc- 
ing that  they  were  to  let,  but,  on  discovering  his  mistake, 
should  cease  all  interference,  the  tenant  would  not  be 
justified  in  abandoning  his  lease.2 

As  there  can  be  no  eviction  unless  the  tenant  be 
expelled  from  or  abandon  the  premises,  should  he  remain 
in  possession  for  any  considerable  period  after  being  sub- 
jected to  conduct  by  his  landlord  claimed  by  the  tenant 
to  have  amounted  to  constructive  eviction,  he  could  not 
resist  successfully  payment  of  rent  on  account  of  it.3 

§  216.  Suspension  of  rent. — The  rule  that  eviction 
suspends  the  payment  of  rent,  results  from  the  meaning 
of  the  term  "rent"  and  from  the  obligations  of  the 
relations  between  landlord  and  tenant.  Rent  is  com- 
pensation for  the  use  of  land,  and  what  the  tenant  pays 
rent  for  is  quiet  possession  or  beneficial  enjoyment. 
When,  therefore,  the  use  or  possession  ceases  by  the  act 
of  the  landlord,  the  consideration  for  the  payment  of  the 
rent  ceases.4 

1  Greton  v.  Smith,  33  N.  Y.  R.  245. 

•  Ogilvie  v.  Hull,  5  Hill,  R  52. 

3  Edgerton  v.  Page,  20  N.  Y.  R.  281 :  Edwards  v.  Candy,  14  Hun 
(N.  Y.  S.  C),  R.  596;  Leopold  v.  Judson,  75  111.  536;  Patterson  v. 
Graham,  140  111.  531;  Hayner  v.  Smith  etux.,  63  111  435;  Lynch  v. 
Baldwin,  69  111.  210. 

4Grommes  et  al.  v.  St.  Paul  Trust  Co.  et  al.,  147  111.  634. 


§217.]  DAMAGES    FOR    EVICTION.  25^ 

Acts  by  the  landlord  in  interference  with  the  tenant's 
possession,  to  constitute  an  eviction,  must  clearly  indicate 
an  intention  on  the  part  of  the  landlord  that  the  tenant 
shall  no  longer  continue  to  hold  the  premises.  Such  acts 
relieve  the  tenant  from  the  payment  of  rent  accruing- 
after  his  possession  ceases,  but  rent  already  accrued  and 
overdue  is  not  forfeited  by  the  eviction.1 

§  217.  Damages  for  eviction. — Eviction  by  the  land- 
lord from  any  portion  of  the  premises  works  a  suspension 
of  the  whole  of  the  thereafter  accruing  rent.  The  land- 
lord will  not  be  permitted  to  apportion  his  own  wrong. 

On  being  thus  evicted  from  the  whole  premises,  the 
tenant  may  recover  the  difference  between  the  value  of 
the  lease  for  the  unexpired  term,  and  the  stipulated  rent, 
together  with  any  other  damages  necessarily  resulting 
from  the  eviction,  the  amount  of  difference  between  the 
expense  of  removal  at  the  time  of  the  eviction,  and  what 
such  expense  would  be  at  the  end  of  the  term,  if  at  the 
latter  period  it  would  be  less,  being  recoverable,  among 
other  items  of  damage. 

On  eviction  by  title  paramount  from  a  portion  of  the 
premises,  the  rent  is  apportioned,  ceasing  as  to  the  por- 
tion from  which  the  tenant  has  suffered  eviction. 

Nominal  damages  only  can  be  recovered  from  the  land- 
lord on  eviction  by  title  paramount,  the  obligation  to 
pay  rent  being  suspended ;  but  rent  which,  during  the 
last  six  years  immediately  preceding  the  eviction,  has 
been  paid,  may,  it  seems,  be  recovered  back  with  interest, 

1  Grommes  et  al.  v.  St.  Paul  Trust  Co.  et  al.,  147  111.  634. 

17 


258  DAMAGES    FOR    EVICTION.  [  §  217. 

the  tenant  being-  answerable   to   the  true  owner  for  the 
amount  as  mesne  profits. 

If  a  tenant  is  evicted  from  land  after  his  crops  are 
planted,  their  value  at  the  time  of  eviction  is  the  measure 
of  his  damages. ' 

1  Olmstead  v.  Burke.  25  111.  86. 


218.]  PROVISIONS    AS    TO    BONDS.  259 


CHAPTER    XXI. 
APPEALS   AND  APPEAL  BONDS. 

Section  218.  Statutory  provisions  as  to  bonds. 

219.  Appeal  bond  indispensable. 

220.  Bond — By  whom  approved. 

221.  What  gives  the  upper  court  jurisdiction. 

222.  The  penalty  of  the  bond. 

223.  Conditions  of  the  appeal  bond. 

224.  What  the  bond  should  be. 

225.  Bonds  in  larger  amount  may  be  required. 

226.  Sureties  on  appeal  bonds. 

227.  Bonds  must  be  in  writing. 

228.  What  will  discharge  the  surety. 

229.  Co-sureties. 

230.  The  defense  of  the  sureties. 

§  218.  Statutory  provisions  as  to  bonds. 

Defendant's  Appeal  Bond — -New  Bonds. 

Sec.  19.  If  the  defendant  appeals,  the  condition  of  the 
bond  shall  be,  that  he  will  prosecute  such  appeal  with 
effect  and  pay  all  rent  then  due  or  that  may  become  clue 
before  the  final  determination  of  the  suit,  and  also  all 
damages  and  loss  which  the  plaintiff  may  sustain  by  rea- 
son of  the  withholding  of  the  premises  in  controversy, 
and  by  reason  of  any  injury  done  thereto  during  such 
withholding  until  the  restitution  of  the  possession  thereof 
to  the  plaintiff,  together  with  all  costs  that  may  accrue 
in  case  the  judgment  from  which  the  appeal  is  taken  is 
affirmed  or  appeal  dismissed  ;  which  said  bond  shall  be  in 
sufficient  amount  to  secure  such  rent,  damages  and  costs, 


260  APPEAL    BOND    INDISPENSABLE.  [§219. 

to  be  ascertained  and  fixed  by  the  court.  And  the  court 
in  which  the  appeal  may  be  pending,  may  require  a  new 
bond  in  a  larger  amount,  if  necessary,  to  secure  the 
rio-hts  of  the  parties;  and  in  case  of  continuance,  mav 
require  another  bond  to  be  given  to  further  secure  the 
same. 

Plaintiff' *5  Aj>]»<il  Bond. 

Sec.  20.  If  the  plaintiff  appeals,  the  condition  of  the 
bond  shall  be  as  in  other  cases  of  appeal,  when  taken  by 
the  plaintiff,  except  as  otherwise  provided  by  law. 

A/>]>r<jl — Writ  of  Restitution — Bond. 

Sec  18.  If  any  party  shall  feel  aggrieved  by  the  ver- 
dict of  the  jury  or  decision  of  the  court,  upon  any  trial 
had  under  this  act,  such  party  may  have  an  appeal,  to 
be  taken  to  the  same  courts,  in  the  same  manner  and 
tried  in  the  same  way  as  appeals  are  taken  and  tried  in 
other  cases.  Provided,  the  appeal  is  prayed  and  bond  is 
filed  within  five  (5)  days  from  the  rendition  of  the  judg- 
ment, and  no  writ  of  restitution  shall  be  issued  in  any 
case  until  the  expiration  of  said  five  (5)  days. 

§  219.  Appeal  bond  indispensable. — The  only  way  in 
which  the  defendant  can  appeal  from  the  judgment  ren- 
dered in  forcible  entry  and  detainer  is  by  praying  the 
same  and  filing  his  bond  in  an  amount  fixed  by  the  trial 
court  within  five  days  of  the  rendition  of  such  judgment. 
There  can  be  no  appeal  pending  and  no  court  in  which 
the  appeal  is  pending  until  the  bond  is  executed  and 
filed,  and  no  legal  bond  can  be  made  until  the  amount  is 
fixed  by  the  court.     Necessarily,    the   trial   court  alone 


§219.]  A.PPEAL    BOND    [NDI8PENSABLE.  261 

can  determine  the  amount.  The  new  bond  that  may  be 
required  pending  the  appeal,  can  only  be  made  by  the 
court  upon  the  showing  that  such  new  bond  is  necessary 
to  secure  the  rights  of  the  parties.1 

Failure  to  appeal  and  file  a  bond  within  five  days  from 
the  rendition  of  the  judgment  is  fatal  in  an  action  of 
forcible  entry  and  detainer;  the  time  for  filing  such  bond 
cannot  be  extended.2 

A  party  appealing,  in  order  to  have  an  appeal,  must 
file  his  bond  within  five  days  from  the  rendition  of  the 
judgment.3 

The  clerk  of  the  court  to  which  an  appeal  is  taken  in 
a  suit  of  forcible  entry  and  detainer  has  no  authority  to 
ascertain  and  fix  the  appeal  bond;  this  must  be  done  by 
the  trial  court.4 

Where  a  justice  of  the  peace  issues  a  summons  in  an 
action  of  forcible  entry  and  detainer,  without  an  affidavit 
having  been  previously  filed,  an  appeal  to  the  Circuit 
Court  by  the  defendant  will  not  waive  or  cure  the  want 
of  jurisdiction  of  the  justice  over  the  subject  matter. 
Such  a  case  is  not  within  the  rule,  that  an  appeal  by  the 
defendant  will  cure  the  want  of  summons  before  the 
justice.5 

Where  a  defendant,  in  an  action  of  forcible  entry  and 
detainer,  appears  and  goes  to  trial  in  the  Circuit  Court 
without  objection   to   the  regularity   of  the  proceedings, 

1  Fairbank  v.  Streeter,  142  111.  226. 
-  Kenny  v.  Jones  et  al.,  37  111.  App.  615. 
:;  Fairbank  v.  Streeter,  41  111.  App.  434. 
4  Bowlby  v.  Robinson  et  al. ,  45  111.  App.  531. 
Stolberg  v.  Ohnmacht,  50  111.  442. 


262  BOND    i:y    WHOM    APPROVED.       [§§220,221. 

he  thereby  admits  their  regularity  and  the  validity  of  the 
demand  of  possession.1 

§  220.  Bond  by  whom  approved. — Where  the  defend- 
ant in  an  action  of  forcible  entry  and  detainer  appeals 
from  the  judgment  of  the  justice  of  the  peace  to  the  Cir- 
cuit Court  within  such  time  that  the  case  will  not  stand 
for  trial  at  the  first  term  of  the  court,  the  court  may 
require  the  party  taking  the  appeal  to  file  a  bond  in 
addition  to  the  appeal  bond,  to  secure  the  rents  which 
may  accrue  between  that  term  and  the  term  to  which  the 
case  is  necessarily  continued,  and  on  neglect  of  the  party 
to  comply  with  the  rule  in  that  regard,  the  court  may 
dismiss  the  appeal.2 

§  221.    What  gives  the  upper  court  jurisdiction. — 

Where  a  defendant  appeals  from  a  judgment  against 
him  in  a  justice  court,  by  filing  his  appeal  with  the  clerk 
of  the  Circuit  Court,  but  files  no  transcript  from  the 
court  below,  the  Circuit  Court  will  have  no  jurisdiction 
of  the  subject  matter  and  cannot  dismiss  the  appeal  on 
the  appearance  of  the  appellee  for  want  of  prosecution  in 
the  absence  of  appellant  and  render  judgment  for  dam- 
ages against  the  latter  for  costs.3 

Where  an  appeal  from  a  justice  of  the  peace  is  per- 
fected before  a  clerk  of  the  Circuit  Court  and  no  sum- 
mons and  alias  summons  are  issued  and  returned  not 
found,  and  the  appellee  has  not  entered  his  appearance 
in  writing  ten  davs  before  the  commencement  of  the 
term,  or  appeared  at  a  prior  term,  it  is  error  to  dismiss 

1  Dunne  v.  Trustees  of  Schools,  39  111.  oTH. 

2  Rider  v.  Bagley,  47  111.  365. 

3  Sheridan  v.  Be^rdslev  et  al..  89  111.  477. 


§  221.]  riM'Ki;  court  jurisdiction',  263 

the  appeal  for  want  of  prosecution,  when  reached  on  the 
docket,  on  motion  of  the  appellee. ' 

Where  a  complaint  in  an  action  of  forcible  entry  and 
detainer  has  no  jurat  attached  to  it,  and  the  defendant 
went  to  trial  before  the  justice  of  the  peace  without 
making  an}7  objection  to  the  complaint,  and  took  an 
appeal  to  the  Circuit  Court,  and  there  for  the  first  time 
entered  a  motion  to  dismiss  the  suit  on  account  of  the 
defect  in  the  complaint  and,  upon  that  motion  being- 
overruled,  went  to  trial  without  excepting  to  the  ruling 
of  the  court,  and  the  transcript  of  the  justice  showed 
that  the  complaint  was  sworn  to,  it  was  held  that, 
although  the  filing  of  a  complaint  was  jurisdictional,  the 
defendant  had  waived  the  defect  that  existed  in  the  com- 
plaint.'2 

The  sixth  section  of  the  "  Act  to  amend  chapter  -to,  of 
the  revised  statutes  of  1845,  entitled  'forcible  entry  and 
detainer,'  "  in  force  February  16,  1865,  does  not  repeal 
that  part  of  the  amended  statute  which  requires  the 
appeal  bond  in  cases  of  forcible  entry  and  detainer  to 
contain  a  clause  for  the  payment  of  all  rents  becoming- 
due,  etc.,  but  simply  requires  the  bond  to  contain  addi- 
tional guaranties  for  the  benefit  of  the  plaintiff.3 

When  the  appeal  bond  given  by  the  defendant  in  an 
action  of  forcible  entry  and  detainer  contains  no  clause 
for  the  payment  of  rent,  as  required  by  the  statute  or 
any   words    from    which    the   payment  of    rent   can    be 

1  Sheridan  v.  Beardsley  et  al.,  89  111.  477. 

-  Center  v.  Gibney,  71  111.  557. 

3  Pitt  et  al.  v.  Swearingen,  76  111.  250. 


204  PENALTY  OF  THE  BOND.  [§  2  2  '1  . 

implied,  no  recovery  of  rent  can   be  had  in  a  suit  upon 
the  same.1 

§  222.  The  penalty  of  the  bond. — An  appeal  bond 
given  upon  an  appeal  to  the  Circuit  Court  taken  by 
the  defendant  in  an  action  for  forcible  detainer, 
should  be  in  a  penalty  sufficient  to  secure  the  payment, 
not  only  of  the  costs  of  the  suit,  but  also  the  rents 
becoming  due  from  the  commencement  of  the  suit  until 
the  final  determination  thereof.2 

Where  an  appeal  from  a  justice  of  the  peace  is  per- 
fected by  filing  the  appeal  bond  in  the  office  of  the  jus- 
tice, no  summons  is  required  to  be  issued  to  the  appellee ; 
in  such  case  the  appellee  may,  without  having  entered 
his  appearance  in  the  Circuit  Court,  and  upon  his  motion, 
have  the  appeal  dismissed  for  want  of  prosecution.3 

But  if  an  appeal  be  perfected  by  filing  the  appeal  bond 
in  the  office  of  the  clerk  of  the  Circuit  Court,  a  summons 
must  issue  to  the  appellee ;  in  that  case,  the  appellant, 
using  proper  diligence  in  procuring  process,  the  appellee, 
if  not  served  with  the  process,  would  have  no  right,  by 
entering  his  appearance,  to  have  the  appeal  dismissed  for 
want  of  prosecution.4 

Where  in  appeals,  in  forcible  entry  and  detainer  cases, 
a  bond  is  given,  and  subsequently  a  new  bond  is  given 
in  a  larger  amount,  as  provided  by  the  statute,  the  latter 
operates  as  a  satisfaction  and  extinguishment  of  the 
former  bond . 

1  Pitt  et  al.  v.  Swearingen,  76  111.  250. 
-  Billings  v.  Lafferty,  31  111.  318. 

3  Boyd  v.  Kocher,  31  111.  29r>. 

4  Boyd  v.  Kocher,  31  111.  295. 

'Poppers  v.  The  International  Bank,  10  III.  App.  531. 


§   223.  |  CONDITIONS    OF    APPEAL    BONDS.  265 

It' a  party  on  appeal  in  forcible  entry  and  detainer 
omit  to  use  proper  diligence  in  procuring  the  process, 
the  appellee  may,  without  having  been  served  with  sum- 
mons, by  entering  his  appearance  in  the  Circuit  Court 
hold  the  same  position  he  would  if  duly  served.1 

A  motion  to  amend  a  bond  on  an  appeal  from  a  justice 
of  the  peace  in  a  case  of  forcible  entry  and  detainer  is 
addressed  to  the  sound  discretion  of  the  court,  and  its 
decision  can  not  be  assigned  for  error.2 

Under  the  statute  as  heretofore  given  on  page  260, 
appeals  may  be  perfected  by  filing  bond  and  praying  an 
appeal  either  in  the  justice  court  where  the  action  was 
tried,  or  by  application  to  the  clerk  of  the  Circuit  Court 
(or  of  the  Superior  Court  of  Cook  County),  and  the  jus- 
tice of  the  peace,  or  the  clerk  of  the  higher  court,  is 
bound  by  law  to  take  a  proper  bond  to  secure  the  appel- 
lee in  rents,  costs  and  damages,  pending  the  appeal ;  and 
in  case  the  bond  is  insufficient,  the  appellee  can  have  the 
difficulty  remedied  by  moving  the  court  to  require  a  new 
and  sufficient  bond.  Yet  it  is  the  duty  of  the  justice 
and  the  clerk  of  the  court  to  require  a  sufficient  bond, 
and  if  loss  occurs  to  the  appellee  by  reason  of  an  insuffi- 
cient appeal  bond,  an  action  of  trespass  on  the  case  will 
lie  against  the  clerk  who  wrongfully  approves  an  appeal 
bond  which  provides  a  penalty  less  than  is  required  by 
law.3 

§  $23.  Conditions  of  appeal  bonds.—"  The  conditions 
of  an  appeal  bond  are  controlled  by  the  character  of  the 

1  Boyd  v.  Kocher,  31  111.  295. 

'-'  Harlan  v.  Scott,  2  Scammon  (III.),  65. 

3  Billings  v.  Lafferty,  31  111.  318. 


266  WHAT    THE    BOND    SHOULD     BE.  [§  224. 

judgment  from  which  the  appeal  is  taken.  Where  the 
appeal  operates  as  a  supersedeas,  the  bond  should  secure 
the  debt,  damages,  and  costs.  An  irregular  appeal  bond 
is  good  as  far  as  it  goes,  if  the  cause  proceeds  upon  the 
faith  of  such  bond.  The  word  '  damages  '  in  an  appeal 
bond  means  the  damages  in  consequence  of  the  appeal ; 
that  is,  the  interest  at  the  rate  fixed  by  statute  upon  the 
amount  of  the  judgment  below,  from  the  date  of  its  ren- 
dition to  the  time  of  entering  the  judgment  above;  and 
the  damages  are  recoverable  against  the  surety  whenever 
the  appeal  is  not  prosecuted  with  effect;  that  is  to  say, 
where  the  final  recovery  is  for  the  same  or  a  larger 
amount  than  the  judgment  below."  ! 

§  224.  What  the  bond  should  be. — The  appeal  bond 
in  forcible  entry  and  detainer  cases  is  the  same  as  that 
required  in  other  appeals,  with  the  addition  of  a  clause 
for  the  payment  of  rents  pending  the  appeal." 

While  a  strict  compliance  with  the  statute  as  to  the 
time  within  which  the  bond  must  be  filed  and  as  to  the 
approval  thereof  is  required,  the  rule  has  never  been 
applied  to  defects  in  the  bond,  such  as  a  lack  of  seal  and 
failure  to  make  it  in  sufficiently  large  penalty,  or  to 
incorporate  in  it  the  conditions  which  the  statute  directs 
that  it  shall  contain.3 

If  an  appeal  bond  contains  conditions  not  required  by 
the  statute,  such  conditions  are  surplusage  and  not  bind- 
ing.4 

1  Amer.  &  Eng.  Encyc.  of  Law,  p.  46G. 
■  Tolman  et  al.  v.  Green  et  al.,  39  111.  225. 
3 Fairbank  v.  Streeter.  41  III.  App.  434. 
4  Tolman  et  al.  v.  Green  et  al.,  39  111.  225. 


§   225.  \  BOND    IN     I.AKN.KU     AMI. INT.  26T 

Upon  an  appeal  from  a  justice  of  the  peace  in  an  action 
of  forcible  entry  and  detainer,  the  appellate  court,  upon 
dismissing  the  appeal,  has  no  jurisdiction  to  enter  judg- 
ment for  costs  against  the  security  in  the  appeal  bond  ; 
such  a  judgment  would  be  void.' 

In  an  action  on  an  appeal  bond  in  forcible  entry  and, 
detainer,  damages  resulting  from  the  forcible  entry  and 
detention  of  the  premises,  apart  from  the  rental  thereof, 
are  not  recoverable.2 

Where  an  appeal  bond,  in  a  case  of  forcible  entry  and 
detainer,  was  conditioned  for  the  payment  of  all  damages 
that  had  or  should  accrue  by  the  reason  of  forcible  entry 
and  detainer,  it  was  held,  that  this  condition  was  not 
required  by  the  statute  and  was  void.3 

An  appeal  bond  should  cover  accruing  rents.4 

Where  an  appeal  bond  in  forcible  entry  and  detainer 
is  conditioned  to  pay  all  rents  that  may  have  accrued, 
and  fails  to  provide  for  the  rents  to  become  due,  it  is 
wholly  insufficient.5 

As  the  defendant  in  an  action  of  forcible  detainer  can 
give  no  appeal  bond  until  the  amount  thereof  is  fixed  by 
the  trial  court,,  he  cannot  take  an  appeal  from  a  judg- 
ment against  him  until  the  amount  of  his  bond  is  fixed 
by  such  court.6 

§  225.   Bond  in  larger  amount  may  be  required 

The  judge  of  the  Circuit  Court,  on  an  appeal  from  the 

1  Keary  v.  Baker,  33  Mo.  603. 

'2  Tolman  et  al.  v.  Green  et  al.,  39  111.  225. 

Tolman  et  al.  v.  Green  et  al.,  39  111.  225. 
*  Rucker  v.  Wheeler  et  al.,  39  111.  436. 

Wood  v.  Tucker,  66  111.  276. 
i;Fairbank  v.  Stieeter,  142  III.  226. 


268  SURETIES    <>.\     APPEAL    BONDS.  [§226. 

judgment  of  a  justice  of  the  peace  in  an  action  of  forci- 
ble detainer,  is  not  concluded  by  the  penalty  of  the  appeal 
bond  as  fixed  by  the  justice  of  the  peace  or  clerk,  but 
may  require  bond  to  be  filed  in  a  larger  sum,  and  in  case, 
of  failure  to  do  so,  dismiss  the  appeal.1 

An  appeal  bond  in  such  case,  conditioned  for  the  pay- 
ment of  all  damages  for  the  wrongful  detention  of  the 
premises,  and  a  second  bond  filed  by  leave  of  the  court, 
conditioned  for  the  payment  of  all  rents,  costs  and  dam- 
ages for  the  wrongful  detention  of  the  premises,  were 
both  wholly  insufficient,  both  in  form  and  substance.2 

Where  the  plaintiff  in  an  action  of  forcible  entry  and 
detainer  is  wrongfully  kept  out  of  the  possession  of  the 
premises  during  the  pendency  of  an  appeal,  the  value  of 
the  use  and  occupation  or  the  reasonable  rental  value  is 
the  correct  measure  of  damages  in  an  action  on  the 
appeal  bond." 

A  surety  on  a  lease  becomes  responsible  for  the  pay- 
ment of  the  rent  reserved  in  the  lease,  in  the  event  of  a 
default  by  the  tenant.  The  landlord,  before  resorting  to 
his  remedy  against  the  surety,  is  not  obliged  to  demand 
the  rent  from  the  tenant  or  institute  proceedings  to 
recover  the  same  or  notify  the  surety  of  the  non-pay- 
ment by  the  tenant.' 

§  226.  Sureties  on  appeal  bonds. — The  performance 
by  the  tenant  of  the   covenants  and   agreements  of  the 

1  Wood  v.  Tucker,  66  111.  276. 
Wood  v.  Tucker,  66  111.  276. 
3Shunick  et  al.  v.  Thompson,  25  111.  App.  619. 

4  Ducker  v.  Rapp,  41  N.  Y.  Sup.  Ct.  235;    Voltz  v.  Harris  et  al.,  40 
111.  155;  Taylor  v.  Taylor,  (54  Ind.  356. 


§   227.]  BONDS    MUST    BE    IN     WKITIM..  '2(\U 

lease  may  be  secured  or  guaranteed  by  a  collateral  under- 
taking of  a  surety.  This  undertaking  need  not  be  in  a 
separate  instrument.  A  person  who  lias  subscribed  a 
lease,  together  with  the  lessee,  may  be  shown  to  be  a 
surety  instead  of  a  joint  lessee;  but,  probably,  not  so 
as  to  impair  the  remedy  of  a  lessor  who  is  without  notice 
of  such  person  being  a  guarantor  only,  nor,  perhaps, 
where  the  lease  itself  expresses  that  he  signs  as  a  prin- 
cipal.1 

§  227.  Bonds  must  be  in  writing'. — The  statute  of 
Illinois  provides  (ch.  50,  sec.  1)  as  follows,  viz.  : 

That  no  action  shall  be  brought  whereby  to  charge  the 
defendant  upon  any  special  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another  person,  unless  the 
promise  or  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereunto  by  him  lawfully 
authorized. 

An  appeal  bond  must  be  executed  by  the  person  named 
as  security  in  the  order  granting  the  appeal ;  if  not  so 
executed,  the  appeal  will  be  dismissed;  for  instance,  the 
order  provided  that  the  appeal  should  be  granted 'Upon 
appeal  bond  being  filed  with  "  Henry  Service"  as  Sfcrrety 
and    the  bond   was  filed  with  J.   H.  Servoss  as  surety: 

this  was  insufficient  and  the  appeal  dismissed.2 

>J 
Must  Br  Madt  by  Appellant.  e  *?  W 

Again,     the    Supreme    Court    held    an    appeaT'»hond 

1  Rosenbaum  v.  Gunter,  2  E.  D.  Smith  R.  415. 
'-'  Shinkell  v.  Letcher  et  al..  40  111.  48. 


270  WHAT    WILL    DISCHARGE    SURETY.  [§228. 

in  sufficient  which  was  signed  by  the  landlord  of  the 
plaintiff  as  principal,  holding  that  the  bond  must  be  made 
by  the  plaintiff  himself.1 

Filing  \>  w  Bond  Discharges  the  Old  One. 

If  the  appeal  bond  is  insufficient  and  a  new  one  is  filed 
and  approved,  the  approval  and  acceptance  of  the  new 
bond  releases  and  discharges  the  sureties  on  the  old  bond 
and  no  recovery  can  be  had  on  the  first  bond.2 

If  by  agreement  of  the  lessor  the  obligations  of  the 
lessee  under  the  lease  are  so  modified,  as  to  result  in  impair- 
ing or  delaying,  or  to  render  less  efficient  the  lessor's  re- 
course  against  the  lessee,  the  surety  will  be  thus  discharged. 
Such,  as  to  surety  for  payment  of  rent,  would  be  the 
effect  of  an  agreement,  in  binding  form,  by  the  lessor 
with  the  lessee,  to  extend  the  time  of  payment  of  rent ; 
but  a  release  or  extension  of  time  of  payment  of  rent  due 
would  not  change  the  surety's  responsibility  for  payment 
of  rent  thereafter  to  accrue.3 

§  228.  What  will  discharge  the  surety. — The  surety 
'will  be  discharged  by  any  act  of  the  lessor,  which 
enlarges,  but  he  will  not  be  released  in  consequence  of  an 
agreement  of  the  lessor  which  plainly  decreases,  his  liabil- 
ity ,  such  as  an  agreement  reducing  the  rent ;  nor,  it  seems, 
in  consequence  of  an  agreement  which  indirectly  renders 
loss  less  probable,  as  one  that  rent  shall  be  payable 
monthly  instead  of  quarterly,  the  latter  being  the  manner 
in  which  it  has  been  reserved  in  the  lease. 

1  Armson  v.  Forsythe,  40  111.  49. 

-  International  Bank  v.  Pappers,  105  111.  491. 

:J  Coe  v.  Cassia y,  72  N.  Y.  R.  133. 


§  229.]  CO-SUKETIES.  271 

A  surety  is  not  generally  entitled  to  notice  of  the 
default  of  his  principal. 

The  lessor,  in  suing,  may  join  in  a  single  action  the 
lessee  and  his  surety  where  the  surety's  undertaking  has 
been  embodied  in  the  lease  itself, — as  if  he  has  subscribed 
that  instrument  "A.  B.,  surety  for"  the  lessee;  but 
where  the  guaranty  is  contained  in  a  separate  instrument 
a  distinct  action  against  the  surety  seems  to  be  requisite. 

Any  defense  relating  to  the  incurring,  by  the  lessee, 
of  the  obligation,  and  to  the  default  in  it,  for  which  the 
action  has  been  brought,  is  as  available  to  the  surety,  as, 
in  an  action  by  the  lessor  against  the  lessee,  it  would  be 
to  the  latter ;  but  in  a  cause  of  action  of  the  lessee  against 
the  lessor,  independent  of  the  incurring  of  this  obliga- 
tion, and  independent  of  such  default,  the  surety  is  not 
entitled  to  interpose 

§  22{).  Co-sureties. — -Touching  co-sureties,  it  is  said, 
"  The  obligation  of  one  or  two  co-sureties  is  to  pay  the 
whole  debt.  The  right  of  a  surety  is,  if  he  pays  the  whole 
debt,  to  recover  one-half  from  his  co-surety,  or  the  whole 
from  the  principal.  If  he  pays  less  than  the  whole  debt,  he 
cannot* recover  from  his  co-surety,  though  he  may  from 
the  principal,  more  than  the  amount  which  he  has  paid  in 
excess  of  the  moiety  which,  as  between  him  and  his 
co-surety,  it  was  his  duty  to  pay.  A  parol  release  of 
one  surety  would  not  discharge  his  co-surety,  but  a  writ- 
ten release,  or  a  discharge  by  operation  of  law  of  one 
surety  will  fully  discharge  his  cosurety.1 

1  Morgan  v.  Smith.  70  N.  Y.  R.  .-)37,  543. 


272  DEFENSE  OF  THE  SURETY.  [§2-30. 

When  suit  is  brought  against  obligors  on  an  appeal 
bond  and  only  one  is  served  with  process  and  no  appear- 
ance is  entered  for  the  other,  it  is  proper  to  take  judg- 
ment against  the  one  upon  whom  service  is  had.  There 
is  no  force  in  the  objection  that  judgment  should  have 
been  rendered  against  both  defendants  or  none.1 

§  230.  The  defense  of  the  surety Where  a  surety 

is  sued  at  law,  lie  must,  if  he  can,  make  his  defense 
there,  and  if  he  neglects  to  do  so  he  can  not  afterward 
have  relief  in  chancery.  It  is  a  defense  for  a  suret}^  at 
law  that  the  creditor  has  wrongfully  deprived  him  of 
recourse  to  collateral  security  held  by  the  creditor,  to 
which  the  surety  had  the  right  of  subrogation,  and  this 
even  when  the  contract  to  which  the  surety  is  a  party  is 
under  seal.  In  an  action  upon  a  contract,  whatever, 
either  at  law,  or  by  the  rules  of  equity  to  which  courts 
of  law  can  give  effect,  operates  to  discharge  or  extinguish 
the  claim  upon  the  contract,  is  a  defense  thereto.  The 
common  law  rule,  that  no  specialty  can  be  avoided  but  by 
an  instrument  of  as  high  a  nature,  and  that  a  judgment, 
being  a  security  of  the  highest  character,  can  not  be 
avoided  by  a  writing  not  under  seal,  has  been  departed 
from  in  this  State  only  in  so  far  as  to  allow  defenses  in 
actions  upon  contracts,  analogous  or  equivalent  to  pay- 
ment; and  in  actions  upon  instruments  which  are  cov- 
ered by  the  statute  concerning  negotiable  instruments, 
want  of,  or  fraud  in  the  consideration  is  fatal  to  recovery  ; 
but  as  to  a  sealed  instrument,  not  within  that  statute, 
fraud  in  the   consideration   can  not   at  law    be   made  a 

1  Coursen  v.  Browning  et  al. ,  86  111.  57. 


§   230.]  DEFENSE    OF    THE    Sl'KETY.  l'7-"> 

defense.  Nor  to  'such  an  instrument  can  it  be  made  a 
defense  at  law  that  the  parties  have  modified  or  changed 
it  by  a  subsequent  agreement  not  under  seal;  and  this  is 
so,  though  the  defense  is  made  by  a  surety,  and  the 
change  is  by  a  written  but  not  sealed  contract,  upon 
adequate  valuable  consideration.  Grounds  of  defense  not 
pressed  must  be  considered  waived.1 

1  Hawkins  v.  Harding,  37  111.  App.  565. 


18 


274  FORMS. 


CHAPTER  XXII. 

FORMS. 

Demand  for  possession. 

Notice  to  quit  by  an  agent. 

Demand  by  an  attorney. 

Notice  to  quit  by  the  owner. 

Notice  to  terminate  weekly  tenancy. 

Ten  days'  notice  to  quit  for  default. 

Another  form  of  notice  to  quit. 

Notice  to  quit  for  landlord  by  the  agent. 

Landlord's  five  days'  notice. 

Sixty  day  notice  to  terminate  tenancy. 

Another  form  of  the  same. 

Sixty  day  notice  to  be  served  by  an  agent. 

Thirty  day  notice  to  terminate  a  tenancy  from  month  to  month. 

A  demand  for  possession  disclosing  the  agent. 

Written  authority  to  agent  or  attorney. 

Written  authority  to  attorney  to  sue,  etc. 

Complaint  in  forcible  entry  and  detainer  in  Illinois. 

Summons  in  forcible  entry  and  detainer. 

Appeal  bond  in  forcible  entry  and  detainer. 

Writ  of  restitution. 

Agreement  for  a  lease. 

Agreement  not  to  obstruct  lights. 

To  renew  a  lease. 

Agreement  of  surety  in  lease. 

Agreement  to  let  furnished  apartments. 

Form  of  guarantee  of  rent,  etc. 

Assignment  and  acceptance  of  lease. 

Assignment  of  lease. 

Consent  to  assignment. 

Assignment  by  lessor. 

New  lease  with  full  powers. 


FORMS.  275 


DEMAND  FOR  POSSESSION. 
To 

I  hereby  demand  the  immediate  possession  of  the  following 
described  premises:    (describing  them),  now  held  by  you.1 

RICHARD  ROE. 
Chicago 18 

NOTICE  TO  QUIT  BY  AN  AGENT. 

To.... 

You  are  hereby  notified  by  me,  the  authorized  agent  (or  attor- 
ney) of  Richard  Roe,  and  in  his  behalf,  to  quit  and  deliver  up  the 
possession  of  the  following  described  premises:  (describing  them), 
held  by  you  of  the  said  Richard  Roe. 

Dated  this... day  of ,  A.  D.  188... 

JOHN  DOE, 
Authorized  Agent  for  Richard  Roe. 

DEMAND  BY  AN  ATTORNEY. 

To.... 

I  hereby  demand  the  immediate  possession  of  the  following  des- 
cribed premises:  (describing  them). 

RICHARD  ROE. 
By  John  Doe,  his  Attorney. 

NOTICE  TO   QUIT. 

To 

I  hereby  give  you  notice  to  quit  and  deliver  up,  on  the 

day  of ,  A.  D.    188...    the   possession  of    tbe   following 

described    premises,    now    held    by    you    of    me:      (Here    describe 
premises). 

RICHARD  ROE, 

Owner. 
Chicago, 188 ... . 

1  Rev.  Stat. ,  chap.  57,  sec.  3. 


276  FORMS. 


NOTICE  TO   TERMINATE  A  WEEKLY  TENANCY. 

To.... 

I  hereby  notify  you  to  quit  and  deliver  up,  at  the  end  of  the 
next  full  week  of  your  tenancy  immediately  succeeding  the  service 
of  this  notice,  the  possession  of  the  following  described  premises, 
held  by  you  of  me:  (describing  them). 

RICHARD  ROE. 

Chicago ,  18 


TEN    DAY   NOTICE    TO   QUIT  ON    ACCOUNT   OF  DEFAULT 
IN   TERMS   OF  THE   LEASE. 

To  A.  B. 

You  are  hereby  notified  that,  in  consequence  of  your  default  in 

(here    insert   the   character   of   the   default)   of   the   premises  now 

occupied  by  you,  being  (here  describe  the  premises),  I  have  elected 

to  determine  your  lease,  and  you  are  hereby  notified  to  quit  and 

deliver  up  possession  of   the   same  to  me  within   ten  days  of   this 

date. 

Chicago day  of ,  188...1 

C.  D. 


1  Rev.  Stat. ,  chap.  80,  sec.  9. 

Note:  Where  the  forfeiture  of  a  lease  is  desired,  it  must  be 
shown  that  the  necessary  acts  to  declare  a  forfeiture  have  been 
done  by  the  landlord.  A  forfeiture  will  not  be  inferred,  but  all 
the  requisite  steps  must  be  taken.  Cheney  v.  Bonnell,  58  111.  268; 
Cone  v.  Woodward,  65  111.  477. 


FORMS.  277 


NOTICE  TO  QUIT. 

To  Mr.  C.  D.  (or  if  it  be  doubtful   who   is   tenant,    "To   C.  D.  or 

whom  else  it  may  concern  *'  >. 

Sir:    You  will  please  take  notice    that  you  are  hereby  required 

to  quit  and   deliver  up,  on   the.. day  of ,  A.    D., 

18..,  the  possession  of  the  house  and  premises  (or  "rooms  and 
apartments,"  or  "  farm,  lands,  and  premises**  )  which  you  now  hold 

of  me,  situated  in  the  town  (or  "city,'"  or  ••village'")  of.. , 

in  the  county  of ,  and  State  of  Illinois,  more  fully  des- 
cribed as  follows:  (here  insert  the  descx-iption,  and  where  the  time 
of  the  commencement  of  the  tenancy  is  doubtful  add,  if  not 
doubtful  omit:)  provided  your  tenancy  commenced  at  that  time  of 
the  year  (or  "month"  or  "week*"):  or  otherwise  that  you  quit 
and  deliver  up  the  possession  of  the  house,  etc.,  at  the  end  of  the 
year  (or  "month"  or  "week")  of  your  tenancy,  which  shall 
expire  next  after  the  end  of  sixty  (or  thirty)  days  from  the  time 
of  your  being  served  with  this  notice. 

Dated day  of ;,  A.  D..  18.... 

.4.  B. 


NOTICE  TO  QUIT  FOR  LANDLORD  BY  AN  AGENT. 

To  Mr.  C.  D.: 

Sir:     I  do  hereby,  as  the  agent  for  and  in  behalf  of  your  land- 
lord, A.  B.,  of give  you  notice  to  quit  and  deliver  up, 

etc.  (as  in  last  form),   which    you   now    hold   of   the   said   A.    B., 
situated,  etc. 
Dated,  etc.  Yours,  etc. 

E.  F. 
Authorized  agent  for  the  said  A.  B.1 


Moore's  Justice,  860. 


178 


FORMS. 


LANDLORD'S  FIVE   DAY   NOTICE. 

FOR  ILLINOIS. 
To 

You   are   hereby  notified,   that    there   is   now    due   the   sum   of 

Dollars  and Cents,  being  rent  for  the  premises 

situated  in  the   City  of   Chicago,  in    Cook  County,  in  the  State  of 
Illinois,  and  known  and  described  as  follows,  viz: 


And  You  are  Further  Notified,  that  payment  of  said  sum  so 
due,  has  been    and    is    hereby  demanded   of   you,  and   that  unless 

payment  thereof  is  made  on  or  before  the day  of 

-A.  D.  18 ,  your  Lease  of  said  premises  will  be 

terminated is   hereby  authorized   to   receive 

said  rent,  so  due. 

Dated  this day  of A.  D.   188... 

Landlord. 

By Agent. 


FORMS.  279 


SIXTY  DAY  NOTICE  TO  TERMINATE  A  YEARLY  TENANCY. 

To  A.  B. : 

You  will  please  take  notice  that  you  are  required  to  quit  and 

deliver  up  on  the. day  of ,  18...,  the  possession 

of  the  following  described  premises,  to  wit:  (describing  them), 
which  you  now  hold  of  me;  or  otherwise,  that  you  quit  and  de- 
liver up  possession  of  the  said  premises  at  the  end  of  the  year  of 
your  tenancy,  which  shall  expire  next  after  the  end  of  sixty  days 
from  the  time  of  your  being  served  with  this  notice. 

Chicago, .,  18 C.  D. 

Landlord  and  Owner. 

ANOTHER  FORM. 

To.. 

You  are  hereby  notified  that  I  have  elected  to  determine    your 
tenancy  of  the  following  described  premises,  to-wit:  (here  describe 

premises),  situated  in  the  city  of ,  county  of , 

and  State  of  Illinois,  at  the  expiration  of  the  current  year,  to-wit: 

on  the day  of ,  18 ,    and   you   are  hereby 

notified  and  required  to  surrender  the  possession  of  the  said  prem- 
ises to  me  on  that  day. 

Dated  at this day  of ,  18... 

A.  B. 

If  such  notice  is  to  be  served  by  an  agent,  use  the  following : 

To  A.  B.: 

You  will   please  take  notice  that  you  are  required  to  quit  and 

deliver  up,  on  the day  of.. ,    18 the  following 

described  premises,  to  wit:  (describing  them),  which  you  now  hold 
of  me:  or  otherwise,  that  you  quit  and  deliver  up  possession  of 
the  said  premises  at  the  end  of  the  year  of  your  tenancy,  which 
shall  expire  next  after  the  end  of  sixty  days  from  the  time  of  your 
being  served  with  this  notice. 

And  I  hereby  appoint my  agent  to  serve  this 

notice  for  me  and  in  my  behalf,  and  to  receive  possession  of  said 
premises  of  you  for  me. 

Chicago,   ,  18....  A.  B. 

Landlord  and  Owner. 


280  FORMS. 


THIRTY  DAY   NOTICE   TO   TERMINATE  A  TENANCY   FROM 

MONTH  TO  MONTH,  OR  FOR  A  GREATER  PERIOD. 

BUT  LESS  THAN  ONE  YEAR. 

To 

You  are  hereby  notified  to  quit  and  deliver  up,  at  the  end  of 
the  month  of  your  tenancy,  expiring  immediately  after  the  end  of 
thirty  days  from  the  date  of  the  service  of  this  notice  upon  you, 
the  possession  of  the  following  described  premises  held  by  you  of 
me:  (describing  them). 

Dated  this day  of.. ,  A.  D.,  18,... 

RICHARD  ROE. 


FORM  OF  DEMAND  DISCLOSING  AGENT. 

To  James  M.  Nixon: 

Sir:  You  will  please  take  notice  that  I  demand  immediate  pos- 
session of  those  certain  premises  now  occupied  by  you,  known  as 
(giving  description),  of  which  said  premises  you  have  possession 
under  a  certain  lease,  dated  the  8th  day  of  May,  A.  D.,  1872,  the 
same  being  from  me  to  you,  from  the  9th  day  of  May,  A.  D., 
1872,  for  and  during  and  until  the  6th  day  of  June,  A.  D.,  1872, 
which  said  term  has  now  expired.  Mr,  Joel  Lull  is  hereby  con- 
stituted my  agent  to  receive  such  possession  from  you,  and  is 
authorized  to.  and  will  receive  the  same  for  me. 

Yours,  etc., 

GEORGE  NOBLE. 

Dated  Chicago,  June  7,  1872. 
(See  70  111.  32.) 


WRITTEN    AUTHORITY   TO   AGENT    OR  ATTORNEY. 

I  hereby  authorize  John  Doe  to  make  demand  for,  and  receive 
possession  of,  the  following  described  premises:  (describing  them), 

now  in  possession  of 

RICHARD  ROE. 

Chicago, ._" ,  188... 


FORMS.  281 


WRITTEN    AUTHORITY   TO   AGENT   OR  ATTORNEY. 

I  hereby  appoint  John  Doe  my  lawful  agent  for  attorney),  with 
full  power  to  do  all  acts  and  take  all  legal  steps  necessary  to 
recover  the  possession,  for  me,  of  the  following  described  premises: 

(describing  them),  now  held  by ,  and  to  receive 

possession  of  the  same  for  me. 

Chicago,. ,188...  RICHARD  ROE. 

COMPLAINT   IN   FORCIBLE    DETAINER. 
(Under  Act  of  1874.) 

STATE   OF  ILLINOIS,  ) 

County,  f SS- 


complain. .to Esq.,  a  Justice  of  the  Peace  in  and  for 

said  County  and  State,  that.. he. .the  said.. 


entitled   to  the  possession  of  the  following  described  premises,  in 
said   County,  to  wit: 


and  that ___ 

unlawfully  withholds  the  possession  thereof  from  the  said. 


Wherefore.. he.. pray __a  summons,  in  pursuance  of  the  Statute  in 
such  case  made  and  provided. 

Dated A.  D.,  18.... 


282  FORMS. 

SUMMONS. 
FORCIBLE  ENTRY  AND  DETAINER,  OR   DETAINER. 

State  of  Illinois,  )  The  People  of  the  State  of  Illinois,  to  the 

>  ss.         Sheriff  or  any  Constable  of  said  Con  nty 
County  of )  —Greeting: 

You  are  hereby  commanded  to  summon ... 


_ .to  appear  before  me,  at 

my  office  in. in  said  County,  on  the.. day 

of ...A.  D.  188..,  at .o'clock, M.,  to  answer  to  the 

Complaint  of. - - 

wherefore unlawfully  withhold  - .  from the  possession 

of  certain  premises   in  said   County,  described    as   follows,  to-wit: 


and  hereof  make  due  return,  as  the  law  directs. 

Given  under  my  hand  and  seal,  this day  of 

....,  A.  D.  188... 

[Seal]. 

Justice  of  the  Peace.1     ■ 


Revised  Stat.,  chap.  57,  sec.  5. 


FORMS.  283 

APPEAL  BOND  IN  FORCIBLE  ENTRY  AND  DETAINER. 
Know  all  Men  by  these  Presents,  That  we. 


of  the  District  of 

firmlv  bound   unto 

and   State  of  Illinois,  are   held  and 

in  the  penal  sum  of Dollars,  lawful  money  of  the 

United  States,  for  the  payment  of  which  well  and  truly  to  be 
made,  we  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  Presents. 

Witness  our  hands  and  seals,  this... day  of 

A.  D.,  18.... 

The  Condition  of  the  above  Obligation  is  such,  that 
Whereas,  The  said 

did  on  the.. .day  of .A.  D.  18...,  before 

Esq. ,  a  Justice   of    the   Peace   for  the 

said  District  of ,  recover  a  Judgment  against  the 

above  bounden in  an  action  for  forcible 

detainer  of  certain  premises  in  said  District,  and  for  restitution 
thereof,  and  for  costs  of  suit,  from  which  said  judgment  the  said 

ha — taken  an  appeal  to  the 

Court  of 

County,  in  the  State  aforesaid.     Now,  if  the  said 

shall  prosecute.. appeal    with   effect, 

and  pay  all  rent  now  due,  and  that  may  become  due  before  the 
final  termination  of  said  suit,  and  all  damages  and  loss  which  the 
plaintiff,  .may  sustain  by  reason  of  the  withholding  of  the  posses- 
sion of  the  premises,  and  by  reason  of  any  injury  done  thereto 
during  such  withholding,  together  with  all  costs,  until  the  resti- 
tution of  the  possession  thereof  to  the  plaintiff..;  in  case  the  Judg- 
ment from  which  the  appeal  is  taken  is  affirmed,  then  the  above 
obligation  to  be  void,  otherwise  to  remain  in  full  force  and  effect. 
Taken  and  Approved  by  Me  this  | 

....day    of A.  D.   18..  j [Seal.] 

...[ [Seal.] 

Justice  of  the  Peace.      I ..[Seal.] 

i 
(or  Judge  of  the  Circuit  Court.)       j 


284  FORMS. 


WRIT   OF   RESTITUTION. 

State  of  Illinois,  i  The  People  of  the  State  of  Illinois,  to  the 
■  ss.         Sheriff  or  any  <  'onstab)e  of  said  County 
. County.  )  —Greeting: 

Whereas. 

lately  obtained  before  me  a  Judgment  against ... 


--. in  an  action  of  forcible.. ...detainer. 

and  for  restitution  of  the  premises  following,  to  wit: 


__ _ and  also  for costs: 

These  ore.  therefore,  to  command  you,  in  the  name  and  by  the 
authority  of  the  said  People,  to  dispossess  the  said 


and  restore  the  said . 

to  the  possession  of  said  premises.     And  you  are  also  hereby  com- 
manded, that   of   the    uoods    and    chattels   of   the   said    defendant 


in  your  County,  you  make  the  sum  of dollars,  and 

cents,  being  the  amount  of  costs  in  said 

suit.      Hereof   make  due    and   immediate  service,  and   return  this 
writ  to  me. 

Given  under  my  hand  and  seal,  at ". 

this.. day  of A.  D.  188... 

[Seal.] 

Justice  of  the  Peace. 


FOKMs.  285 

AGREEMENT  FOR   A   LEASE. 

Memorandum  of   an  agreement  made  this  day  of ,  is  ., 

between  A.  B.  of  the  one  part,  and  C.  D.  of  the  other  part. 

The  said  A.  B.  agrees  to  grant,  and  the  said  C.  D.  agrees  to 
take  a  lease  of  those  premises,  etc., ,  with  the  appurte- 
nances, for  the  term  of years,  to  commence  and  be  com- 
puted from  the day  of next,  inclusively,  at  the  yearly 

rent  of dollars,  to  be  paid  half  yearly  on  the day  of 

and  on  the day  of . 

The  said  A.  B.,  his  heirs  or  assigns,  will,  at  the  request  of  the 
said  C.  D.,  his  executors,  administrators  or  assigns,  execute  a  lease 
of  the  said  premises  to  the  said  C.  D.,  Ids  executors,  administra- 
tors or  assigns,  for  the  term  and  at  the  rent  aforesaid,  to  be  pay- 
able as  aforesaid. 

The  said  lease  shall  contain  the  following  covenants: 

[Here  set  out  proposed  covenants.]  A.  B. 

C.    D. 

NOT   TO   OBSTRUCT   LIGHTS,    ETC. 

And  that  the  said  party  of  the  first  part,  his  heirs  or  assigns, 
shall  not,  by  building  or  otherwise,  obstruct  or  darken  any  win- 
dow or  other  source  of  light  or  air  to  the  said  premises. 

TO   MAKE  RENEWAL. 

And  that  the  said  party  of  the  first  part,  his  heirs  or  assigns, 
will,  at  the  expiration  of  the  term  of  this  lease,  execute  to  the 
said  party  of  the  second  part,  his  executors,  administrators  or 
assigns,  a  new  lease  of  the  said  premises,  upon  his  or  their  demand. 

for  the  further  term  of years,  for  the  yearly  rent  of 

dollars,  payable ;   such  new  lease  to  contain  the  same 

covenants  as  this  present  lease. 

AGREEMENT  OF   SURETY. 

In  consideration  of  the  execution  of  the  within  lease,  and  for 
and  in  consideration  of  the  payment  by  the  lessor  of  the  sum  of 
one  dollar,  receipt  whereof  is  hereby  acknowledged,  I,  the  under- 
signed, do  hereby  guarantee  to  the  said (the  lessor),  and  to 

his    heirs,  executors,  administrators   and    assigns,  payment  of    the 

rent  mentioned  in  the  said  lease,  and  also  performance  by , 

the  lessee,  his  executors,  administrators  and  assigns,  as  well  of  the 
covenant  (or  agreement)  to  pay  such  rent  as  observance  and  per- 
formance of  all  the  other  covenants  (or  agreements)  in  the  said 
lease  contained,  and  on  his  or  their  part  to  be  performed. 

Dated, ,  18 


286  forms. 


AGREEMENT  TO  LET  FURNISHED  APARTMENTS. 

Memorandum  of  agreement  made  and  entered  into  this... 

day  of ,  18...,  between    A.  B.,  of ,  of  the 

one  part,  and  C.  D. ,  of ,  of  the  other  part.     The  said  A. 

B.  doth  hereby  agree  to  let  to  the  said  C.  D.,  and  the  said  C.  D.  doth 
hereby  agree  to  take  all  those  three  rooms  on  the  first  floor  of  the 
dwelling-house  situated,  etc.,  and  also  all  and  singular  the  furni- 
ture, articles  and  effects  now  being  in  the  said  rooms  respect- 
ively, and  also  the  other  articles  and  things  comprised  in  the 
schedule  hereunder    written,   for  the  term  of  six    months,    to  be 

computed  from  the day  of next,  at  the    rent  of 

dollars  per  month;  and   in  consideration  of  the  premises, 

the  said  C.  D.  doth  agree,  at  the  expiration  of  the  said  term,  to 
deliver  up  the  premises  and  furniture,  articles  and  effects  hereby 
agreed  to  be  let,  in  as  good  a  condition  as  the  same  now  are  in, 
reasonable  wear  and  tear  excepted,  and  that  he  shall  and  will 
duly  replace  all  such  parts  thereof,  respectively,  as  may  be  broken 
or  injured  by  the  said  C.  D.  during  his  tenancy,  the  said  A.  B.  not 
to  do  or  suffer  to  be  done,  anything  in  the  said  house  of  a  noisy, 
noxious,  or  offensive  nature;  provided  that  if  at  any  time  during 
the  said  tenancy  the  said  C.  D.  shall  be  annoyed,  vexed,  or  dis- 
turbed by  anything  of  a  noxious,  noisy,  or  offensive  nature  con- 
trary to  the  stipulations  in  that  behalf  above  contained,  then  it 
shall  be  lawful  for  the  said  C.  D.,  by  notice  in  writing,  to  termi- 
nate the  tenancy  hereby  created,  and  to  quit  possession  of  the  said 
rooms  without  giving  any  previous  notice  to  quit,  anything  here- 
inbefore contained  to  the  contrary  in  any  wise  notwithstanding, 
and  thereupon  the  said  C.  D.  shall  be  liable  to  pay  rent  pro  rata 
to  the  time  of  quitting. 

[Annex  schedule.] 

(Signed)  A.  B. 

C.  D. 


FORMS.  287 


GUARANTEE. 

For  value  received, hereby  guarantee  the  payment  of 

the  rent  and  the  performance  of  the  covenants  by  the  party  of 
the  second  part  in  the  within  lease  covenanted  and  agreed,  in 
manner  and  form  as  in  said  lease  provided. 

Witness hand,  and  seal.  this... day  of... A.  D.  18... 

[Seal.J 

....[Seal.] 


ASSIGNMENT  AND  ACCEPTANCE. 

For  value  received hereby  assign  all 

right,  title,  and  interest  in  and  to  the  within  lease  unto 

heirs  and    assigns,    and    in    consideration   of   the  consent  to    this 

assignment  by  the  lessor, guarantee  the  performance  by 

said of  all  the  covenants  on  the  part 

of  the  second  party  in  said  lease  mentioned. 

In  consideration  of  the  above  assignment  and  the  written  con- 
sent of  the  party  of  the  first  part  thereto, 

hereby  assume  and  agree  to  make  all  the  payments  and  perform 
all  the  covenants  and  conditions  of  the  within  lease,  by  said  party 
of  the  second  part  to  be  made  and  performed. 

Witness hand.. and  seal. .this day  of A.  D.,  188__. 

[Seal.] 

..[Seal.] 

[Seal.] 


LESSOR'S  ASSIGNMENT. 

In  consideration  of  One  Dollar,  to... ..in   hand 

paid, .....hereby  transfer,  assign,  and  set  over 

to. 

and   assigns interest  in  the  within  lease,  and  the 

rent  thereby  secured 

Witness hand. .and  seal. .this -day  of A.  D.  188... 

...[Seal.] 


288  FORMS. 


ASSIGNMENT  OF   LEASE. 

Th  is  In deu  t  ure .  Made  on  this day  of ,  in  the 

year  eighteen  hundred  and ,  between ,  of 

,..,  party  of  the  first  part,  and ,  of... ,  party 

of  the  second  part,  witnesseth :    That  the  said ,  party  of 

the  first  part,  for  and  in  consideration  of  the  sum  of 

dollars,  lawful  meney  of  the  United  States  of  America,  to  him  in 
hand  paid,  receipt  whereof  is  hereby  acknowledged,  hath  assigned 
and  sold,  and  hereby  doth  assign,  sell,  transfer  and  set  over  unto 
the  said  party  of  the  second  part,  and  to  his  executors,  adminis- 
trators and  assigns,  a  certain  indenture  of  lease  of  premises  known 

as ,  which  lease  bears  date  on  the day  of. 

in   the   year   one   thousand   eight   hundred   and ,  and  was 

executed  by  one ,  to   the    said ,  party  of   the  first 

part  hereto,  to  have  and  to  hold  the  same  and  all  rights  there- 
under for  the  unexpired  term  of  the  said  lease,  unto  the  said  party  of 
the  second  part,  his  executors,  administrators  and  assigns,  subject, 
however,  to  the  covenants,  conditions,  exceptions  and  reservations 
therein  contained 

In  witness  whereof,  the  said  party  of  the  first  part  hereto  hath 

hereunto  set  his  hand  and   seal   on    the  day  and    in  the  year  first 

above  written. 

Sealed  and  delivered ) 
in  presence  of 
[Seal.] 


CONSENT  TO  ASSIGNMENT. 

hereby  consent  to  the  assignment  of  the  within 

lease  to - 

on  the  express  condition,  however,  that  the  assignor  shall  remain 
liable  for  the  prompt  payment  of  the  rent  and  performance  of  the 
covenants  on  the  part  of  the  second  party  as  therein  mentioned, 
and  that  no  further  assignment  of  said  lease  or  sub-letting  of  the 

premises  or  any  part  thereof  shall  be  made  without 

written  assent  first  had  thereto. 

Witness hand. .and  seal-.this ..day  of A.  D.,  188... 

[Seal.] 


FORMS.  289 


NEW  LEASE  WITH  FULL  POWERS. 

This  Indenture,    Made  this day 

of _ in  the  year  of  our  Lord  One  Thousand 

Eight  Hundred  and  Eighty Between 

party 

of  the  first    part,  and '... 

party  of  the  second  part. 

WITNESSETH,  That  the  party  of  the  first  part,  for  and  in  con- 
sideration of  the  covenants  and  agreements  hereinafter  mentioned, 
to  he  kept  and  performed  by  the  party  of  the  second  part,  has 
demised  and  leased  to  the  party  of  the  second  part  the  premises 
in  the  City  of  Chicago,  County  of  Cook,  and  State  of  Illinois. 
known  and  described  as  follows: 


to  be  occupied - 

and  for  no  other  purpose  whatever. 

To  have  and  to  hold  the   same   unto   the    party  of  the  second 

part,  from  the -.day  of 

A.  D.  188..,  until  the day  of. 

A.  D.  188... 
And    the  party  of  the  second    part,    in    consideration    of    said 
19 


290  FORMS. 

demise,  does  covenant  and  agree  with  the  party  of  the  first  part  as 
follows: 

First.     To  pay  as  rent  for  said   demised   premises  the  sum  of 

Dollars, 

payable  in installments  of 

Dollars, 


each  in  advance  upon  the   first   day   of  each  and  every  month  of 
said  term  at  the  office  of CHICAGO,  ILL. 

Second.  That  he  has  examined  and  knows  the  condition  of 
said  premises,  and  has  received  the  same  in  good  order  and 
repair,  except  as  herein  otherwise  specified,  and  that  no  represen- 
tations as  to  the  condition  or  repair  thereof  have  been  made  by 
the  party  of  the  first  part  or  the  agent  of  said  party,  prior  to  or 
at  the  execution  of  this  lease,  that  are  not  herein  expressed  or 
indorsed  hereon;  and  that  he  will  keep  said  premises  in  good 
repair,  replacing  all  broken  glass  with  glass  of  the  same  size  and 
quality  as  that  broken;  and  will  keep  said  premises  and  appur- 
tenances, including  catch-basins,  vaults,  and  adjoining  alleys,  in  a 
clean  and  healthy  condition,  according  to  the  city  ordinances,  and 
the  direction  of  the  proper  public  officers,  during  the  term 
of  this  lease,  at  his  own  expense;  and  will,  without  injury 
to  the  roof,  remove  the  snow  and  ice  from  the  same  when  neces- 
sary, and  clean  the  snow  and  ice  from  the  sidewalks  in  front  of 
said  premises;  and  upon  the  termination  of  this  lease,  in  any  way, 
will  yield  up  said  premises  to  said  party  of  the  first  part  in  good 
condition  and  repair  (loss  by  fire  and  ordinary  wear  excepted), 
and  deliver  the  keys  at  the  office  of .  _ 


Third.  That  the  party  of  the  first  part  shall  not  be  liable  for 
any  damage  occasioned  by  failure  to  keep  said  premises  in  repair, 
and  shall  not  be  liable  for  any  damage  done  or  occasioned  by  or 
from  plumbing,  gas,  water,  steam  or  other  pipes,  or  sewerage,  or 
the  bursting,  leaking  or  running  of  any  cistern,  tank,  wash-stand. 


FOBMS.  291 

water-closet  or  waste  pipe  in,  above,  upon  or  about  said  building 
or  premises,  nor  for  damage  occasioned  by  water,  snow  or  ice  being 
upon  or  coming  through  the  roof,  skylight,  trap  door  or  otherwise. 
nor  for  any  damages  arising  from  acts  or  neglect  of  co-tenants  or 
other  occupants  of  the  same  building,  or  of  any  owners  or  occu- 
pants of  adjacent  or  contiguous  property. 

Fourth.  That  lie  will  not  allow  said  premises  to  be  used  for 
any  purpose  that  will  increase  the  rate  of  insurance  thereon,  nor 
for  any  purpose  other  than  that  hereinbefore  specified,  nor  to  be 
occupied,  in  whole  or  in  part,  by  any  other  person,  and  will  not 
sub-let  the  same  nor  any  part  thereof,  nor  assign  this  lease  without, 
in  each  case,  the  written  consent  of  the  party  of  the  first  part  first 
had,  and  will  not  permit  any  transfer,  by  operation  of  law,  of  the 
interest  in  said  premises  acquired  through  this  lease;  and  will  not 
permit  said  premises  to  be  used  for  any  unlawful  purpose,  or  pur- 
pose that  will  injure  the  reputat'on  of  the  same  or  of  the  building 
of  which  they  are  a  part,  or  disturb  the  tenants  of  such  building  or 
the  neighborhood:  and  will  not  permit  the  same  to  remain  vacant 
or  unoccupied  for  more  than  ten  consecutive  days;  and  will  not 
permit  any  alteration  of  or  upon  any  part  of  said  demised  premises, 
nor  allow  any  signs  or  placards  posted  or  placed  thereon,  except  by 
written  consent  of  first  party;  all  alterations  and  additions  to  said 
premises  shall  remain  for  the  benefit  of  the  lessor  unless  otherwise 
provided  in  said  consent  as  aforesaid. 

Fifth.  To  pay  (in  addition  to  the  rents  above  specified)  all 
water  rents  and  gas  bills  taxed,  levied  or  charged  on  said  demised 
premises,  for  and  during  the  time  for  which  this  lease  is  granted, 
and  in  case  no  water  rents  are  levied  specifically  upon  said  prem- 
ises, to  pay  the ...part  of  all  water  rents  levied  or 

charged  upon  the  building  in  which  said  demised  premises  are 
situated;  and  in  case  said  water  rates  and  gas  bills  shall  not  be  paid 
when  due,  said  party  of  the  first  part  shall  have  the  right  to  pay 
the  same,  which  amount  so  paid,  together  with  any  sums  paid  by 
said  party  of  the  first  part  to  keep  said  premises  and  their  appur- 
tenances in  a  clean  and  healthy  condition,  as  hereinbefore  specified, 
are  hereby  declared  to  be  so  much  additional  rent,  and  shall  be 
due  and  payable  with  the  next  installment  of  rent  due  thereafter 
under  this  lease. 


292  FOKMS. 

Sixth.  To  allow  the  party  of  the  first  part  free  access  to  the 
premises  hereby  leased  for  the  purpose  of  examining  or  exhibiting 
the  same,  or  to  make  any  needful  repairs  or  alterations  of  said 
premises  which  said  first  party  may  see  fit  to  make;  also  to  allow 
to  have  placed  upon  said  premises,  at  all  times,  notice  of  "For 
Sale"  and  "To  Rent,"  and  will  not  interfere  with  the  same. 

Seventh.  If  said  party  of  the  second  part  shall  abandon  or 
vacate  said  premises,  the  same  shall  be  re-let  by  the  party  of  the 
first  part  for  such  rent  and  upon  such  terms  as  said  first  party  may 
see  fit;  and  if  a  sufficient  sum  shall  not  be  thus  realized,  after 
paying  the  expenses  of  such  re-letting  and  collecting,  to  satisfy 
the  rent  hereby  reserved,  the  party  of  the  second  part  agrees  to 
satisfy  and  paj\  all  deficiency. 

Eighth.  At  the  termination  of  this  lease,  by  lapse  of  time  or 
otherwise,  to  yield  up  immediate  possession  to  said  party  of  the 
first  part,  and  failing  so  to  do,  to  pay  as  liquidated  damages,  for 

the  whole  time  such  possession  is  withheld,  the  sum  of-  

dollars  per  day;  but  the  provisions  of  this  clause  shall  not  be  held 
as  a  waiver  by  said  first  party  of  any  right  of  re-entry  as  herein- 
after set  forth;  nor  shall  the  receipt  of  said  rent  or  any  part 
thereof,  or  any  other  act  in  apparent  affirmance  of  the  tenancy, 
operate  as  a  waiver  of  the  right  to  forfeit  this  lease  and  the  term 
hereby  granted  for  the  period  still  unexpired,  for  any  breach  of 
any  of  the  covenants  herein. 


It  is   Expressly   Agreed,  Between   the  parties  hereto,  that  if 


FORMS.  293 

default  be  made  in  the  payment  of  the  rent  above  reserved,  or  any 
part  thereof,  or  in  any  of  the  covenants  and  agreements  herein  con- 
tained, to  be  kept  by  the  party  of  tb<'  second  part,  it  sball  be  lawful 
for  tbe  party  of  the  first  part  or  the  legal  representatives  of  said 
party,  at  any  time  thereafter,  at  the  election  of  said  first  party,  or 
the  legal  representatives  thereof,  without  notice,  to  declare  said 
term  ended,  and  to  re-enter  said  demised  premises,  or  any  part 
thereof,  either  with  or  without  process  of  law,  and  the  said  party  of 
the  second  part  or  any  person  or  persons  occupying  the  same  to 
expel,  remove  and  put  out,  using  such  force  as  may  be  necessary 
so  to  do,  and  the  said  premises  again  to  re-possess  and  enjoy,  as 
before  the  demise,  without  prejudice  to  any  remedies  which  might 
otherwise  be  used  for  arrears  of  rent  or  preceding  breach  of  cov- 
enants; and  said  party  of  the  second  part  further  covenants  and 
agrees  that  said  party  of  the  first  part,  or  the  representatives  or 
assigns  of  said  party,  shall  have,  at  all  times,  the  right  to  distrain 
for  rent  due,  and  shall  have  a  valid  and  first  lien  upon  all  prop- 
erty of  said  party  of  the  second  part,  whether  exempt  by  law  or 
not,  as  security  for  the  payment  of  the  rent  herein  reserved. 

The   party   of    the    second  part   hereby    irrevocably    constitutes 

or  any  attorney 

of  any  court  of  record  of  this  State,  attorney  for  him  in  his  name, 
on  default  by  him  of  any  of  the  covenants  herein,  and  upon 
complaint  made  by  6aid  first  party,  his  agent  or  assigns,  and  filed 
in  any  such  court,  to  enter  his  appearance  in  any  such  court 
of  record,  waive  process  and  service  thereof,  and  trial  by  jury, 
and  confess  judgment  against  him  in  favor  of  said  party  of  the 
first  part,  or  his  assigns,  from  time  to  time,  for  any  rent  which 
may  be  due  to  Said  party  of  the  first  part,  or  the  assignees  of  said 
party,  by  the  terms  of  this  lease,  with  costs  and dol- 
lars attorney's  fees,  and  to  waive  all  errors,  and  all  right  of  appeal 
from  said  judgment  and  judgments,  and  to  file  a  consent  in  writ- 
ing that  a  writ  of  restitution  or  other  proper  writ  of  execution 
may  be  issued  immediately;  said  party  of  the  second  part  hereby 
expressly  waiving  all  right  to  any  notice  or  demand  under  any 
statute  in  this  State  i-elating  to  forcible  entry  and  detainer. 

It  is  further  agreed   by    the   parties    hereto    that,   after  the 
service  of  notice,  or  the   commencement   of   a  suit,  or  after   final 


•294  FORMS. 

judgment  for  possession  of  said  premises,  the  first  party  may- 
receive  and  collect  any  rent  due,  and  the  payment  of  said  rent 
shall  not  waive  or  affect  said  notice,  said   suit  or  said  judgment. 

In  case  said  premises  shall  be  rendered  untenantable  by  fire, 
or  other  casualty,  the  lessor  may  at  his  option  terminate  this  1  ase, 
or  repair  said  premises  within  thirty  days,  and  failing  so  to  do,  or 
upon  the  destruction  of  said  premises  by  fire,  the  term  hereby 
created  shall  cease  and  determine. 

The  party  of  the  second  part  further  covenants  and  agrees  to 
pay  and  discharge  all  reasonable  costs,  attorney's  fees  and  expenses 
that  shall  be  made  and  incurred  by  the  party  of  the  first  part  in 
enforcing  the  covenants  and  agreements  of  this  lease;  and  all  the 
parties  to  this  lease  agree  that  the  covenants  and  agreements  herein 
contained  shall  be  binding  upon,  apply  and  inure  to  their  respect- 
ive heirs,  executors,  administrators  and  assigns. 

Witness  the  hands  and  seals  of  the  parties  hereto,  the  day  and 
year  first  above  written. 

1  [Seal.] 

In  presence  of 

y  _B [Seal.] 

.-- J  --- [Seal.] 


FORMS.  295 


SHORT  COUNTRY    LEASE. 

This  Indenture,  Made  this day  of. 

A.  D.  189...,  between ._ 


party  of  the  tirst  part,  and. 


--- - ..party  of  the  second  part, 

WITNESSETH,  that  the  party  of  the  first  part,  in  consideration  of 
the  covenants  of   the   party  of   the   second   part,   hereinafter   set 

forth,   do by  these  presents,  lease   to   the  party  of  the  second 

party,  the  following  described  property,  to-wit:     


- .  - in  the 

County  of and  State  of 

To  Have  and  to  Hold  the  Same  to  the  party  of  the  se  ond  part. 

from  the day  of...   ._ ,  189. ..,  to  the 

day  of ,  189 And  the  party 

of  ,the  second  part,  in  consideration  of  the  leasing  the  premises  as 
above  set  forth,  covenants  and  agrees  with  the  party  of  the  first 

part  to  pay  the  party  of  the  first  part,  at 

as  rent  for  the  same,  the  sum  of .dollars, 

payable  as  follows,  to-wit : 


And  the  Party  of  the  Second  Part  covenants  with  the  party 


296  FORMS. 

of  the  first  part,  that  at  the  expiration  of  the  term  of  this  lease. - 
he.  .will  yield  up  the  premises  to  the  party  of  the  first  part,  with- 
out further  uotice,  in  as  good  condition  as  when  the  same  were 
entered  upon  by  the  party  of  the  second  part,  loss  by  fire  or 
inevitable  accident  and  ordinary  wear  excepted. 

It  is  Further  Agreed   by  the  party  of  the  second  part,  that 

neither,  .he.  .nor ...legal   representatives  will  underlet 

said  premises  or  any  part  thereof,  or  assign  this  lease  without  the 
written  assent  of  the  party  of  the  first  part  first  had  thereto. 

And  it  is  Further  Expressly  Agreed  between  the  parties 
hereto,  that  if  default  shall  be  made  in  the  payment  of  the  rent 
above  reserved,  or  any  part  thereof,  or  any  of  the  covenants  or 
agreements  herein  contained  to  be  kept  by  the  party  of  the  second 

part,  it  shall  be  lawful  for  the  party  of  the  first  part  or 

legal  representatives,  into  and  upon  said  premises  or  any  part 
thereof,  either  with  or  without  process  of  law,  to  re-enter  and 
re-possess  the  same  at  the  election  of  the  party  of  the  first  part, 
and  to  distrain  for  any  rent  that  may  be  due  thereon  upon  any 
property  belonging  to  the  party  of  the  second  part.  And  in  order 
to  enforce  a  forfeiture  for  non-paynient  of  rtnt  it  shall  not  be 
necessary  to  make  a  demand  on  the  same  day  the  rent  shall 
become  due,  but  the  failure  to  pay  the  same  at  the  pte.ee  aforesaid 
or  a  demand  and  a  refusal  to  pay  on  the  same  day,  or  at  any 
time  on  any  subsequent  day  shall  be  sufficient;  and  after  such 
default  shall  be  made,  the  party  of  the  second  part  and  all  persons 

in   possession  under .shall   be  deemed    guilty  of   a    forcible 

detainer  of  said  premises  under  the  statute. 

And   it   is    Further   Covenanted   and    Agrked    between   the 

parties  aforesaid,   


The   covenants   herein  shall    extend    to  and    be    binding   upon  the 


FORMS.  297 

heirs,  executors  and  administrators  of  the  parties  to  this  lease. 

Witness  the   Hands   and   Seals  of   the   parties  aforesaid,  the 
day  and  year  first  above  written 

-- .  —  .[Seal.] 

[Seal.] 


SKELETON    LEASE. 
This  Indenture,  Made   this _ day  of. 


the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty. 
between 


of  the  first  part,  and 


-- -    -- of  the  second  part. 

WITNESSETH,  that  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  rents,  covenants  and  agreements  hereinafter 
mentioned,   to   be    kept   and   performed  by  the  said   party  of   the 

second  part, .  executors,  administrators  and  assigns,  ha 

demised  and  leased,  and  by  these  presents  do demise  and  lease 

unto  the  said  party  of  the  second  part,.. executors,  admin- 
istrators and  assigns,  all  those  premises  lying  and  being  in 

in  the  County  of and   State  of 

known  and  described  as  follows,  to  wit: 


To   Have  and   to    Hold    the   said    demised    premises,  with    the 


298  FORMS. 

appurtenances,  unto  the  said  party  of  the  second  part, 

executors    administrators  and  assigns,  for  and  during  the  term  of 

from  the day  of in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  eighty 

for  and  during,  until -  - 

. And  the  said  party  of  the  second  part, 

in  consideration  of   the  leasing  of   the  premises  aforesaid,  by  the 
said  party  of   the  first  part  to  the  said  party  of  the  second  part, 

does  covenant  and  agree  with  the  said  party  of  the  first  part, 

heirs,  executors,  administrators  and  assigns,  to  pay  the  said  party 
of  the  first  part,  as  rent  for  the  said    demised    premises,  the  sum 

of •- 


It  is  Agreed,  By  the  said  party  of  the  second  part,  that  neither 

nor legal  representatives,  will  underlet  said 

premises,  or  any  part  thereof,  or  assign  this  lease,  without  the 
written  assent  of  said  party  of  the  first  part  first  had  and  obtained 

thereto,  and  that will  not  use  or  permit  the  said  premises 

to  be  used  for  any  purpose  prohibited  by  the  laws  or  ordinances 
of  the  town,  city,  county  or  state  where  situated,  or  for  any 
hazardous  purpose  whatever,  or  purpose  calculated  to  increase  the 
insurance. 


And  the  Said  Party  of   the  Second   Part  further  covenants 


FORMS.  299 

with  the  said  party  of  the  first  part,  that  said  second  party  has 
received  said  demised  premises   in  good  order  and  condition,  and 

at  the  expiration  of  the  term    in   this  lease  mentioned 

will  yield  up  the  said  premises  to  the  said  party  of  the  first  part 
in  as  good  order  and  condition  as  when  "the  same  were  entered 
upon  by  the  said  party  of  the  second  part,  loss  by  fire,  or  inevi- 
table accident,  or  ordinary  wear  excepted;  and  also  will  keep  said 

premises  in  good  repair    during  this    lease,  at . own 

expense.  Provided  always,  and  these  presents  are  upon  the  express 
condition,  that  if  it  shall  so  happen  that  the  rent  above  reserved, 
or  any  part  thereof,  be  behind  or  unpaid  at  the  times  or  on  the 
day  or  days  above  mentioned  for  the  payment  thereof,  or  in  case 
of  the  non-performance  of  any  of  the  covenants  made  by  the  said 
party  of  the  second  part,  at  any  of  the  times  mentioned  for  the 
performance  thereof,  then  and  from  thenceforth  it  shall  and  may 

be  lawful  for  the  said  party  of  the  first  part, . 

heirs  and  assigns,  into  the  said  demised  premises,  or  any  part  in 
the  name  of  the  whole  to  re-enter,  and  the  same  to  have  again, 
retain,  re-possess   and  enjoy,    and   the   said  party    of   the    second 

part, heirs,  executors,  administrators  or  assigns,  and  all 

others,  tenants  or  occupiers  of  the  said  premises  hereby  demised, 
or  any  part  thereof,  thereout  or  therefrom,  utterly  to  expel,  put 
out  and  remove;  and  from  and  after  such  re-entry  made,  this 
lease,  and  every  part  thereof,  shall  cea=e  and  be  absolutely  void, 
as  it  respects  the  covenants'  to  be  performed  by  the  said  party  of 

the  first  part.     And  the  said   party  of  the  first  part,  for 

heirs  and   assigns,   do .hereby   covenant  and   agree  to  and 

with  the  said  party  of  the  second  part, heirs,  executors, 

administrators  or  assigns,  paying  the  rent  above  reserved  in  man- 
ner aforesaid,  and  observing,  keeping  and  performing  all  and 
singular  the  covenants  and  agreements  hereinbefore  mentioned  on 

and  their  parts  to  be  kept  and  performed, 

shall  and  may  peaceably  and  quietly  have,  hold,  occupy,  possess 
and  enjoy  the  said  demised  premises,  with  the  appurtenances,  for 
and  during  the  said  term,  without  any  lawful  let.  quit,  hindrance 

or  molestation,  to  the  said  part of  the  first  part,.. 

heirs  and  assigns,  or  any  other  person  or  persons  claiming  or  to 
claim,  by,  from  or  under  him  or  them,  or  any  other  person  or 
persons  having  or  lawfully  claiming  any  right  in  the  said  premises. 

And  it  is  Further  Covenanted  and  Agreed,  bv  and  between 


300 


FORMS. 


the  parties,  that  the  party  of  the  second  part  shall  pay  and  dis- 
charge all  costs  and  attorneys'  fees  and  expenses  that  shall  arise 
from  enforcing  the  covenants  of  this  lease  by  the  party  of  the 
first  part. 

In  Witness  Whereof,  the  parties  hereunto  have  interchange- 
ably set  their  hands  and  seals,  the  day  and  year  first  above 
written. 


Signed,  sealed  and   delivered 
in  presence  of 


[Seal.] 
[Seal.] 
[Seal.  1 
[Seal.], 


INDEX 


A 

I' AGE 

ABANDONMENT. 

abandonment  of  possession . .  113 

not  eviction  without 250,  249 

must  pay  rent  or  go  out 251 

tenant  may  abandon  for  failure  to  repair 202 

ACCEPTANCE  OF  PREMISES— DELIVERY  OF  KEY. 

delivery  of    key  as  indicating    a  termination  of    the 

tenancy  . . 126 

effect  of  delivering    key  and    paying  rent  after    suit 

brought  . . . 1 26 

ACCRUING  RENT. 

unqualified  conveyances  pass  rent  accrued 42 

who  entitled  to  collect  rents  on  sale 42 

accruing  rent  not  reserved    passes 42 

but  not  colbctible  until  attornment 42 

accepting  rent     from     assignee   does  not    discharge 

lessee -  . . .  43 

landlord  may  accept  assignee  as  sole  tenant 43 

landlord  estopped  to  collect  after  sur  ender 43 

lessor's  consent     to    assignment    does  not  discharge 

tenant  from  rent 43 

what     the   tenant     may  show    as   to   assignment    of 

lease .  _  _ . . 44 

rent  not  collectible  contrary  to  Statute  of  Frauds. ..  44 

landlord  entitled  to  rent  until  conveyance 44 

administrator  cannot  collect  rents 44 

rent  belongs  to  the  heirs 45 

when  assignment  of  lease  void  or  voidable 45,  46 

how  it  affects  assignee.... .    45 

•assignee  of  lease  acquires  equitable  title  to  rents 45 

301 


302  INDEX. 

.,  PAGE 

Accruing  Rent— Continued. 

covenants    in     a    lease     pass    with    it    to    the     new 

owners - -  -  46 

rights  of   the    landlord    in    case  of    voidable    assign- 
ment   46 

an    agreement    not  to   under-let    does,  not     prevent 

assignment 46 

ACTION -NATURE  OF  THE. 

in  some  states  parties  indicted 62 

liberty  regulated  by  law 62 

the  object  of  this  action  to  preserve  the  peace 62 

it  forbids  taking  forcible  possession 62 

in  the  State  of  Illinois  a  civil  proceeding ..  63 

an  action  at  law  relating  to  real  property 68 

most  generally  a  civil  proceeding  alone 63 

the  remedy  two-fold 63 

indictment  at  common  law .  -  63 

proceedings  under  the  Statute 63 

the  common  law  affords  no  civil  remedy .. —  63 

no  writ    of  restitution   awarded    in  a  criminal    pro- 
ceeding  64 

if    no  statute  on  the  subject    an  indictment    may  be 

had -  64 

the  only  issue  to  be  tried -  -  92 

the  party  entitled  to  possession  should  be  plaintiff ..  92 

the  questions  that  go  to  make  up  the  issue..     92 

what  possession  is  required 93 

as  to  the  possession  of  unoccupied  lands 76.  93 

what  lands  embraced  in  premises 93 

statutory  provisions.. 67 

what  a  forcible  entry  means 67 

taking  possession  by  force  forbidden 67 

a    party  wrongfully  kept  out    has  no  right  to  resort 

to  force -- - 67 

the  Missouri  law  as  to  force.. 67 

if  a  tenant  agrees  to    leave  on  a  particular  "day,  the 
landlord    has  no  justification  in    ousting  him   by 

force 67 

if    the  tenant  vacates  the   landlord  can    break    open 

his  own  house. - --  68- 


INDEX.  303 


Action— Nature  of  the— Continued. 

any  expulsion  by  force  illegal 68 

ACTION— WHO   MAY  MAINTAIN. 

the  action   lies   only    to    obtain     possession    of     real 

property 96 

the  only  one  who  can  make  complaint 96 

lawful  possesson  must  be  averred  in  plaintiff 96 

the  capacity  in  which  he  holds  not  important 97,  101 

devisee,  when  grantor    of   lessor,  may  maintain    the 

action 97 

right  of    action  vests  in  the    party  whose  possession 

has  been  invaded 97 

one  in  actual  possession  claiming  the  fee  may  main- 
tain the  action 97 

the  right  or  the  wrong  of  the  possession  unim- 
portant  97 

the  action  will    lie  against  the  owner   who  obtained 

possession  by  collusion 97 

only  party  entitled  to  possession  at  the  commence- 
ment of  the  suit  can  sue... 98 

a  stranger    to  a  decree  turned  out    by  virtue  of    the 

decree  may  bring  action 98 

one  joint  tenant  can  not  recover  exclusive  posses- 
sion of  another 98 

one  who  has  possession  for  the  owner  may  main- 
tain the  action 98 

ACTION  WHEN  JUDICIAL  SALE  HAS  BEEN  MADE. 

where  the  premises  have  been  sold  at  judicial  sale...  86 

the  sixth  statutory  cause  of  action 86 

this  action  lies  where  lands  and  tenements  have  been 
conveyed  by  grantor  in  possession  under  a  judg- 
ment or  decree 86 

when  sold  under  a  power  of  sale  in  a  mortgage 86 

demand  in  writing  must  be  made  86 

right  of  action  under  a  judicial  sale 86 

right  of  action  under  a.  trust  deed  or  mortgage 85 

date  of  title  at  foreclosure  sale 86 

purchaser  at  foreclosure  sale  not  bound  by  mort- 
gagor's  lease.. 87 


304  INDEX. 

PAGE 

.Action  When  Judicial  Sale  has  Been  Made— Continued. 

against  whom  the  action  will  lie  under  this  clause.  87 

what  the  plaintiff  must  prove  to  sustain  the  action.  87 
writ  of    possession  and    forcible  detainer    concurrent 

remedies 87 

who  liable  for  detention  of  premises  after  sale 87 

against  whom  suit  brought 88 

only  against  party  to  judgment 88 

in  these  actions  the  title  is  put  in  issue  . . . 88 

the  evidence  to  support  the  action ...  88 

judgment,  execution  and  sheriff's  deed 88 

these  are  indispensable  requisites 88 

demand  of  possession  must  be  made 89 

plaintiff    must    show  that  defendant    got    possession 

under  party  to  the  trust  deed 89 

what  must  be  proved  to  recover  in  this  action 89 

a    stranger  to  the  judgment   liable    if   his  right    ac- 
quired subject  to  the  judgment  lien 89 

otherwise  he  is  not  liable 90 

plaintiff  must  show  privity  of  estate  between  the  de- 
fendant and  mortgagor 90 

when  third  parties  may  be  restored  to  possession 90 

if  a    tenant  attorns  to  the  purchaser  the  relation  of 

landlord  and  tenant  is  created 90 

what  notice  required  before  commencing  suit  under 

this  section 90 

demand  in  writing  only  need  be  made 91 

ACTION  WILL  LIE— AGAINST  WHOM  THE.— 

the  general  rule.. 104 

will    lie    against    tenant     or    any    person     claiming 

under  him 104 

if    a    party    direct  others   to   take   possession    he     is 

liable.. 104 

a  sub-tenant    occupies  the  place  of    the  tenant    and 

is  liable  to  the  action 104 

party  entering  in  good  faith  not  liable 105 

defendants — who  included  as 105 

result  of  a  party  ousted  by  mistake ' 105 

a    tenant  continuing    in    possession  after  notice  of 

new  terms  is  liable 105 


305 


Action  Will  Lie— Against  Whom  The.— Continued. 

action  will  lie  against  a  city 107 

tlif  tenant  or  any  one  claiming  under  him  liable..  71 
person  making  the  forcible  entry  and  any  one  com- 
ing in  under  him,  collusively,  is  liable. 71,  82 

an  occupant  in  good  faith  can  not  be  made  a  wrong- 
doer..          72,  74 

a  breach' of  the  peace  is  not  necessary  to  constitute 

a  forcible  entry 72,  73 

opening  a  gate  and  removing  property  is  a  forcible 

entry 72 

in  case  lease  authorizes  entry  by  landlord 73 

detention  after  demand  unlawful 73 

payment  of  taxes  not  proof  of  ownership 73 

acts  of  ownership  not  amounting  to  actual  posses- 
sion  insufficient 74 

acts  implying  title  do  not  prove  possession 74 

acts    indicating  ownership    which  will  not    support 

the  action 74 

permission    by  a  father  to    his  son   for  a  long    time 

is  not  sufficient  possession. 74 

a    license  that  may    be   revoked   by  notice,     insuffi- 
cient to  support  the  action 75 

entry  into  vacant  lands 75 

the    action  will   lie    for   entry  into  vacant  lands    or 

tenements 75 

what  acts  constitute  possession  of  unoccupied  land...  76 
the  owner  of  unoccupied  lands  deemed  to  have  pos- 
session.  76 

pre-emption  claims  without  occupation  insufficient...  76 

AGAINST  A  TENANT   HOLDING  OVER. 

fourth  cause  of  action  under  the  Statute 76 

against    a   tenant     holding  over  after   the   termina- 
tion of  lease . 76-73 

how  far  the  possession  of  tenant  will  avail  the  land- 
lord  76 

a  party  procuring  possession  by  fraud  liable 77 

possession  confided  to  the  tenant  must    not    be  tam- 
pered with 77 

20 


306  INDEX. 

PAGE 

Against  a  Tenant  Holding  Over — Continued. 

tenant    should    not  betray  the  interest  of  the    land- 
lord  77 

tenant  must  act  in  good  faith  to  his  landlord 77 

ACTION  WILL  NOT  LIE. 

will  not  lie  to  recover  an  incorporeal  right 106 

will  not  lie  for  possession  of  a  ferry _ 106 

does  not  lie  for  forcible  entry  of  a  weir '.  106 

will  not  lie  to  recover  personal  property 106 

when  wife  is  not  a  necessary  party 106 

will     not     lie    against    several     defendants    on    one 

demand . . 106 

or  against  two  or  more  who  held  in  severalty 106 

where  several  tenants  how  rent  should  be  paid 107 

Illinois  Statute  compared  with  English  Act 107 

if  plaintiff  has   parted  with   the  actual  possession.. 

he  can  not  maintain  the  action 107 

the  action  will    not    lie  against  the  claimant  not    in 

possession 107 

ACTIONS  FOR  RENT. 

meaning  of  the  term  debt . .  214 

rent  reserved  in  a  lease  is  a  debt 214 

the  amount  of  rent  furnishes  the  measure  of  damages.  214 
a  party    holding   as   owner  not     liable   for  use    and 

occupation 215 

AGENCY. 

notice  by  agent  must  discover.. 121 

how  proven . 124 

case  on  a  sufficiency  of  notice 124 

attorney  in  fact  may  act  by  another... 124 

a  weekly  tenancy  terminated  by  one  week's  notice. .  124 

notice  should  be  fixed  by  the  rent  day -  124 

in  case  of  tenancy  at  will  notice  proper  evidence —  125 

tenancy  at  will  terminated  by  demand  only 125 

parol    tenancy    from    year   to   year    terminated    by 

sixty  days  notice 125 

lease  terminated  by  the  death  of  the  lessor 125 

no  notice  required  where  lease  expires  by  its  terms. .  125 


[NDEX.  307 

PAGE 

AGENT. 

authority  of,  must  be  under  seal,  when 3 

may  distrain  for  rent .*... 121 .  275 

when  possession  of  husband  as,  of  wife 191 

may  sign  and  serve  notice  to  quit 122 

authority  of,  must  be  proved  on  trial 121 

written  authority  to 280 

form  of  notice  to  quit  by 275,  279 

form  of  demand  disclosing . . 275 

AMENDMENT. 

of  complaint,  when  should  be  made 143 

of  proceedings  may  be  allowed  in  discretion  court..  143 

may  be  made  before  or  after  verdict . 143 

APARTMENTS. 

lodger  not  justified  in  quitting,  without  notice 26 

when  separate,  considered  distinct  mansion  houses--  26 

APPEAL  AND  APPEAL  BONDS. 

defendant's  appeal  bond 259 

plaintiff's  appeal  bond 259 

new  bonds 260 

writ  of  restitution _.  260 

appeal  bond  indispensable 260 

failure  to  file  appeal  bond  in  five  (5)  days  fatal 261 

court  must  fix  the  amount  of  bond 261 

what  defects  cured  by  the  appeal 261 

irregularity  waived  by  going  to  trial 261 

bond — by  whom  approved 262 

form  of  bond. 283 

APPEAL  BOND— CONDITIONS  OF. 

controlled  by  the  judgment  of  the  court  below 265 

appeal  operates  as  a  supersedeas.. 266 

defective  appeal  bond  may  be  amended 266 

what  damages  in   appeal  bond  mean _ .  266 

what  the  appeal   bond  should  be 266 

defects  as  to  seal  and  penalty  may  be  amended 266 

useless  conditions  in  appeal  bonds  simply  surplusage. .  266 
upper  court  can  not  enter    judgment  against  surety 

on  appeal  bond   on  dismissal 267 


308  INDEX. 

PAGE 

Appeal  Bond — Conditions  of. — Continued. 

damages    other   than     the    rental    value  not    recover- 
able   207 

conditions  not  required  by  the  statute  void 267 

appeal  bond  should  cover  accruing  rents 267 

bond  not  providing  for  accruing  rents  insufficient...  267 
defendant    can  not   appeal    until  bond  fixed    by  the 

court.. - -  -  - 267 

new  bonds  in  larger  amounts  may  be  taken 268 

instances  of  insufficien  t  bonds. 268 

APPURTENANCES. 

include  what - 50 

unconnected  property  not  included 51 

ASSIGNEE. 

has  same  rights  as  original  landlord 40 

of  tenant,  has  same  rights  as  original  tenant 40 

of  reversion,  when  not  liable  on  covenants  in  lease.. .  42 

when  right  of  action  will  not  pass  to —  42 

has  right  of  action  to  recover  possession.. —  41 

ASSIGNMENT  OF  THE  LEASE. 

leases  assignable 40 

if  assignment  forbidden   lease  still  not  void 40 

assignment  contrary  to  lease  voidable 40 

landlord  may  assign  the  rent  to  accrue 40,42 

assignee  of  rent  may  collect  in  his  own  name 40 

title  can  not  be  assigned  on  lease 40 

a  recognized  assignee  can  sue  for  rent 40 

how  equity  treats  an  assignment  of  lease 41 

how  assignment  can  be  made — -  41 

lessee    has    power  to  assign  the   lease  unless    forbid- 
den in  lease 41 

results  if  tenant  assign  contrary  to  lease.. 41 

a  void  assignment  becoming  executed  stands 41 

an  agreement  in  a  lease  runs  with  the  land 41 

lessor  may  convey  parts  of  his  reversion 42 

such  covenants  to  convey  are  divisible 42 

result  when  lessor  conveys  pendente  lite 42 


INDKX.  309 

pagi: 
ATTORNMENT. 

what  attornment  means 38 

payment  of  rent  a  sufficient  attornment 38 

where  the  landlord  sells  the  fee... 38 

when  the  grantee  authorized  to  sue  for  rent 38 

purchaser  can  not  collect  rent  without  attornment..  39 

result  of  attornment  to  another  than  the  lessor 39 

promise  of  the  tenant  to  pay  rent  sufficient 39 

the  tenant's  right  to  attorn  to  owner. 39 

attornment  acknowledges  the  new  landlord :'>9 

possession    must  be    surrendered   to  landlord    before 

attornment ...    :'>'-» 

B 
BOARDING  HOUSE. 

distinction  between  inn  and. 27 

liability  for  negligence 30 

BONDS. 

appeal  bonds 259 

new  bonds 260 

bond  indispensable  for  appeals 260 

bonds — by  whom  approved 262 

bonds — conditions  of 265 

BO  OND  ARIES. 

deeds  may  be  used  to  show. 165 

c 

COMPLAINT,  THE. 

the  complaint  is  the  foundation  of  the  action 142 

must    describe    the    property    with    reasonable   cer- 
tainty  142 

instances  of  insufficient  description 143 

the  statute  provides   what  it  should  be ..  143 

if  defective  objection  when  made 143 

amendment  should  be  made  in  lower  court 143 

a  motion  to  quash  filed  in  lower  court 143 

no  law  requiring    justices  of    the  peace  to  mark  the 

papers  filed 143 

the    clerk    of   the   higher  court  or   the   justice   may 

issue  summons 144 


310  INDEX. 

PAGE 

Complaint,  The.— Continued. 

must    show  that    the   relation    of  landlord  and    ten- 
ant existed -  -  - -  - 81 

it  must  show  the  holding  over  after  demand 81 

must  show  facts  that  presume  a  tenancy. 81 

a  sub-lessee  liable  to  eviction  in  this  action 81 

in  trial,  the  holding  over  proven 81 

extent  of  right  in  such  case -  -  82 

against    a    purchaser  who   fails    to  comply  with  the 

contract  of  purchase 82 

the  fifth  statutory  cause 82 

when  the  action  will  lie 82 

written  demand  must  be  made 82 

possession    of     defendant    may     be    by    himself     or 

others  under  him 82 

vendor  can  bring  action  under  this  clause..- 82 

purchaser  can  not  deny  vendor's  right 83 

relation  of  vendor  and  vendee  must  exist. 83 

possession    must    have  been    under  contract  of    pur- 
chase    -  -  - 

must  be  a  failure  to  comply  with  the  contract 83 

must  be  before  obtaining  a  deed  to  the  premises 83 

where    a   deed     is   made   as  a    mortgage   the     mort- 
gagee is  not  liable 83 

must  be  a  contract  of  purchase 83 

four  essentials  to  sustain  this  action 83 

what  proper  evidence  in  the  action 83 

action  fails  unless  essential  elements  proven 83 

the  action  will  lie  under  the  Act  of  1861. 84 

others  claiming  under  the  vendee  stand  in  his  shoes  85 
the    grantee    of   the   vendee   can   claim    no     greater 

rights  than  his  grantor 85 

land    conveyed    for   the  security  of    money  is  not  a 

purchase - --  "5 

any     reservation     is   inconsistent    with   an     absolute 

deed --- 

COMPLAINT,  DATE   OF. 

a  mistake  of  years  in  date  is  immaterial 161 

restitution  awarded  on  dismissal  of  appeal 161 


83 


81 


INDEX.  .'ill 

~  ^  ~  PAGE 

Complaint,  Date  of.— Continued. 

the  death  of  defendant  after  suit  brought  is  no   bar 

to  recovery _ 161 

judgments   against    defendants    should     be     several, 

not  joint 161 

one    action    will    not    lie     against    two    holding     in 

severalty 161 

notice  in  writing  the  same  except  names  are  orig- 
inal duplicates 162 

color  of  title  a  question  of  law... 161 

COMPLAINT  SHOULD  CONTAIN,  WHAT  THE. 

must  show  right  of  possession  at  the  commence- 
ment of  the  action 145 

need  not  allege  the  estate  held  by  plaintiff 145 

must  show  actual  or  constructive  possession 145 

that  the  relation  of  landlord  and  tenant  existed 145 

complaint  should  describe  the  premises  properly 145 

should  not  follow  erroneous  description  in  the  lease..  145 

CO-PARTNER. 

one  cannot  dispossess  his  co-partner 195 

COVENANTS. 

covenants  defined 20 

a  stipulation  under  seal 20 

a  covenant  belongs  to  the  party  making  it 20 

the    stipulation   taken  as    the  language    of    the    one 

who  is  bound  to  perform  it 20 

party  can  not  recover  on  a  contract  until  it  is  per- 
formed   20 

the    jury  alone    are    the  judges  whether  performed 

or  not 20 

the  word  "demise"  imports  that  lessor  has  a  right 
to  make  the  lease;  it  also  implies  a  covenant  for 

quiet  enjoyment 20 

demise  imports  a  legal  estate  in  the  lessor 21 

a  tenant  ejected  from  the  demised  premises  by  ad- 
verse title  is  discharged  from  rent 21 

a  covenant  for  quiet  enjoj-ment  assures  a  legal   entry 

and  enjoyment  after  entry 21 


312  INDEX. 

PAGE 

Covenants.—  Continued. 

covenant  of    landlord  of   legal    entry  is    not    broken 
by   the  entry   of  a  party  who  does    not  claim  an 

adverse  title 21 

covenants  may  be   for  landlord  only ..  34 

thirty  dollars  per  day  stipulated  damages  sustained..  21 
tenant  must  yield  possession,  notwithstanding  pend- 
ing negotiations  for  a  new  lease 22 

privilege  to    store  cases  in    basement    is    not  a    leas- 
ing of  the  same 22 

the  covenant  arising  from  a  "demise"  explained 22 

COVENANTS,  IMPLIED. 

the  implied  covenant  for  quiet  enjoyment  does   not 

oblige  lessor  to  put  lessee  in  possession 22 

if  tenant  kept  out  by  act  of    the  landlord    he  has  a 

right  of  action  for  damages 28 

rule  as  to  damages 23 

what  the  law  implies  as  to  quiet  enjoyment 23 

the    implied    covenant    of     tenant  as  to    waste   and 

nuisance 23 

the  same  as  to  cultivation  of  ground 23 

waiver  of    demand  and    notice  by   the  tenant  in  the 

lease  sustained 23 

former   tenant     holding   over  does    not   release     the 

new  tenant  from  rent - .-  23 

the  lessee  having  the  right  of  possession   must  assert 

his  rights  ^.  i 24 

CO-SURETIES. 

the  obligation  of  each  is  to  pay  the  whole  debt 271 

if  one  pays    the  whole  debt  the    co-surety  is    Liable 

for  his  share - 271 

principal  is  liable  to  sureties  for  the  whole  amount...  271 

a  parol    release    of  one  surety  will    not   release    the 

co-surety. 271 

a  written    release  of  'one    surety  will  discharge    his 

co-surety 271! 

in  a    suit    against    sureties  judgment  may  be  taken 

against  one 271 


INDEX.  31  3 

PAGE. 

Co-sureties.— Continued. 

judgment  need  not  be  rendered  against  both  de- 
fendants      271 

D 

DAMAGES. 

damages  can  not  be  allowed  in  the  action _   ..  217 

gaining  possession  the  only  object  of  the  suit. 217 

only  judgment  is  for  possession 217 

verdict  assessing  damages  at  one  cent  sustained 218 

damages  caused  by   negligence  of  landlord 218 

such  damages  not  the  subject  of  recoupment 218 

liquidated  damages  specified  in  lease  for  holding  over 

is  valid  and  not  a  penalty.. 219 

a  set  off  of  the  damages  through  a  defective  water 

pipe  properly  admitted  in  an  action  for  rent 219 

failure  to  make  repairs  as  agreed  a  matter  of  defense 

against  rent 219 

tenant's  damage  for   failure  to  repair  in  time  agreed 

proper  set  off 220 

if  a  landlord  fails  to  deliver  lease  tenant  may  sue 
for    specified    performance    or    for  damages    for 

breach  of  contract 220 

the  measure  of  damages  the  value  of  the  lessee's  bar- 
gain and  any  other  special  damage »    220' 

leasing  premises  with  the  knowledge  that  they  are 
infected   with   disease   creates  liability,    in  such 

case  tenant  can  abandon  lease 221 

tenant  of  life  estate  must  pay  taxes 221 

DAMAGES  BY  WATER. 

landlord  does  not   warrant   that  the  premises  should 

be  fit  for  occupant 209 

is  not  liable  for  water  damages  from  upper  floor 209 

tenant  having  the   use   of   pipes   and   crank  can  not 

recover  damages  if  he  neglects  his  duty 209 

la  dlord  liable  for  injuries  caused  by  his  own  neg- 
ligence   209 

tenant  who  takes  premises  with  a  defective  water 
pipe  can  not  recover  damages  in  consequence  of 
the  defect. 210 


314  INDEX. 

PAGE 

Damages  by  Water. — Continued. 

landlord  is  answerable  as  occupant  not  as  landlord  if 
lie  lives  in  same  building  and  causes  damage  by 
his  negligence.- - -- - 210 

damages  by  one's  own  negl  gence  can  not  be  recov- 
ered of  another.. 210 

DAMAGE  FOR  WANT  OF  REPAIRS. 

landlord  liable  when  premises  rented  in  a  dangerous 

condition 207 

landlord  liable  for  renting  premises  with  a  nuisance 

on    them 207,  208 

landlord  not  liable  to  third  party  unless  he  agreed  to 


repair. 


208 


landlord  liable  if  he   agreed   to   repair  or  lets  prem- 
ises with  a  nuisance  on  them .-  208 

if  a  tenant  creates  a  nuisance  landlord  may  abate  it  208 
to  abate  a  nuisance  by  a  bill  in  chancery  it  must  be 

a  clear  strong  case — 208 

DEATH. 

action  abates  on  death  of   defendant 65 

death  of  defendant  after  suit    brought  no  bar  to  re- 
covery  — --  161 

DEMAND  OF  POSSESSION— RETURN— FORM. 

how  demand  may  be  served 115 

how  served  on  vacant  premises 115 

the  officer's  return  prima  facie  evidence 115 

a  person  not  an  officer  must  make  affidavit  of  service  115 

demand  may  be  made  by  an  authorized  agent 115 

DEMAND  IN  WRITING. 

is  necessary  where  double  rent  claimed 116 

must  be  signed   by   the   owner,    his   agent   or  attor- 
ney..  116,  121,  122 

made  after  expiration  of  lease 116 

before  that  unavailing 117 

on  same  day  suit  brought  sufficient 117 

need  not  be  made  any  specific  time  before  the  com- 
mencement of  suit -  117 

what  the  demand  should  contain 121 


INDEX.  315 

PACK 

Demand  in  Writing.— Continued. 

demand  by  agent  must  disclose  agency 122 

notice  should  be  left  with  occupant 122 

a  notice  that  tenant  can  examine _ 122 

what  is  sufficient  service  of  notice  to  quit 122 

reading  notice  to  tenant  not  sufficient 122 

a  notice  posted  on  door  sufficient— when 122 

what  notice  by  agent  should  be 123 

DESCRIPTION  DEFECTIVE. 

can  not  be  supplied  by  parol  proof 180 

wrongful  withholding  the  gist  of  the  action  must  be 

proven 180 

proof  of  refusal  to  surrender   premises  necessary 181 

lease  is  proper  evidence  in  appeal  cases 181 

proof  of  rent  of  an  adjoining  lot  allowed.  . 181 

declarations  of  party  in  possession  admissible  against 

him.. 182 

such  declarations  part  of  the  res  gestae 182 

DESCRIPTION  OF  PREMISES  REQUIRED. 

must  be  sufficiently  accurate  to  identify  the  premises  146 

must  be  such  that  pi'eniises  can  be  located  by  a  sur- 
veyor  146 

sufficient  if  the  property  can  be  readily  identified  by 

the  description 146 

instances  of  insufficient  description 147,  148 

DISMISSAL. 

appeals  may  be  dismissed  by  circuit  court 186 

DISTRESS  FOR  RENT. 

rent  defined. 228 

must  be  certain  in  amount  and  nature 228 

need  not  be  payable  in   money 229 

must  be  for  some  definite  time.... 229 

when    payable   monthly   or   quarterly  —  the   election 

belongs  to  landlord 229 

rent  reserved  payable  in  advance  collected  accordingly  229 
notion  that  rent  can  not  be  collected  until  end  of  the 

month  a  mistake 229 

provisions  of  lease  govern — 229 


316  INDEX. 

PAGE 

Distress  for  Rent— Continued. 

place  of  payment — premises 229- 

time  of  payment — the  end  of  the  lease  unless  other- 
wise provided . .  229 

landlord  may  distrain  rent  due 229 

set  off  against  rent — cases  in  which  this  applies 230 

rent  collected  if  distress  warrant  insufficient 280 

taking  security  does  not  waive  right  to  distrain 230 

tenant  may  maintain  trover 231 

no  distress  if  no  tenancy 331 

rent  not  recoverable  if   tenant   deprived  of  premises 

by  landlord <... - -  231 

growing    crops    may    be    seized  if    tenant  abandons 

premises  whether  rent  due  or  not 231 

with  this  exception  distress  lies  only  for  rent  due...  231 

DISTRESS  WARRANT  AND  EXECUTION  CONSIDERED, 
distress  warrant  after  the  levy  of  an  execution  is  a 

secondary  lien 233 

levy  by  distress  subject  to  lien  of  prior  execution...  233 

otherwise  in  growing  crops 233 

if  property  converted  by  landlord  tenant  must  plead 

set-off 233 

when  tenant  may  recoup  against  illegal  distress..  ...  233 

landlord  may  levy  on  chattel  mortgage  property 233,  234 

such  levy  is  not  trespass 234 

in  trial  of  distress  cases  tenant  may  set-off  damages 

for  injury  to  use  of  premises 234 

right  to  distrain  arises  at  common  law 234 

a  levy  without  taking  possession  is  insufficient 234 

DISTRESS  LIMITED  TO  AMOUNT  CLAIMED  IN  WAR- 
RANT, 
landlord  can  not  recover  more  than  claimed  in  dis- 
tress warrant 285 

what  he  can  show  on  trial 236 

tenant  may  reduce  the  amount  by  proof 236 

DISTRESS  CASES— TRIAL  IN. 

amount  of  rent  fixed  by  trial  binding  on  all  parties.  238 

is  error  to  award  a  special  execution 238 

what  the  court  should  ascertain .  238 


LNDEX.  317 

PAGE 

Distress  Cases— Trial  in.— Continued. 

certificate  to  the  sheriff   constitutes   his  authority  to 

sell 238 

must  apply  proceeds  as  directed  in  certificate 238 

lien  on  growing  crops  is    paramount  aud  all  persons 

must  take  notice 238 

lien  not  lost  by  failure  to  enforce  promptly.. 238 

wheat  sown  in  the  fall  and   harvested  the  next  year 

liable  to  lien  for  both  years'  rent ..,  239 

landlord's  lien  on  growing  crops  entitled  him  to  pos- 
session  239 

he  may  recover  by  replevin. 239 

lien  not  confined  to  any  particular  crop. 240 

rent  lien  for  property  situated  in  two  townships 240 

what  tenant  may  show  if  property  replevied 241 

appraisement  of  property   imperative 241 

commencement  of  landlord's  lien 241 

lease  of  purchasers  without    notice 242 

statute  generally    controls  landlord's  lien.. 242 

lien  on  undi  <  ided  crops 242 

distress  for  rent  is  for  rent  due  only ...  242 

other  matters  may  be  brought  in  by  defendant 242 

what  landlord  can   recover  _ 243 

trespass    will    lie    against    landlord    for    making    an 

illegal  levy 243 

claiming  more  rent  than  due  wrongfully  makes  land- 
lord liable  as  trespasser 243 

excessive  levy,  by  mistake,  not  wrongful 244 

defendant  may  show  eviction  on  trial  for  distress  for 

rent 244 

E 
EVICTION. 

definition  of  eviction 245 

actual  eviction   defined 245 

forcible  expulsion  not  necessary 246 

taking  portion  of  premises — eviction 246 

interfering  with  enjoyment  of  premises... 246 

nature  of  the  interference  considered 246 

-constructive  eviction  defined 247 


318  [NDEX. 

PAGE. 

Eviction— Continued. 

acts  constituting  co  structive  eviction 24? 

acts  that  do  not  amount  to  eviction 248 

must  be  such  as  justify  tenant  in  leaving 248 

riotous  and  obscene  behavior  of  landlord — eviction..  248 

eviction  of  part  by  railroad  company 248 

foreclosing  a  chattel  mortgage  on  furniture  not  evic- 
tion  249 

if  tenant  ousted  by  judgment — eviction... 249 

a  judgment  prosecuted  to  ouster — an  eviction 249 

tenant  can  not  remain  in  premises  and  refuse  to  pay 

rent 249 

if  neither   actual   nor   constructive  expulsion  tenant 

must  pay  rent 249 

no  constructive   eviction   without   surrender   of   the 

premises 249 

tenant   can   not   plead   eviction   and   remain    in   the 

premises 250 

no  eviction  without  actual  abandonment  of  whole  or 

part  of  premises . 250 

eviction  is  a  question  of  fact  for  the  jury 250 

temporary  interference  with  water  pipes  not  an  evic- 
tion.  250 

cases  illustrating  doctrine  of  eviction 250,  251 

EVICTION,  EFFECT  AND  CONSEQUENCES  OF. 

may  prevent  the  recovery  of  rent 251 

when  eviction  exonerates  tenant  from  rent 251 

collecting  rent  from  an  under-tenant  exonerates  tenant  251 
any  act  of  landlord  rendering  lease  unavailing  exon- 
erates from  rent 251 

if  landlord  wrongfully  ousts  tenant  rent  is  discharged  252 
taking  part  of  the  premises  by  landlord   exonerates 

tenant 252 

eviction  no  bar  to  rent  previously  accrued 252 

EVIDENCE. 

occupants — declarations  of,  are  admissible 173 

equitable  title  in  tenant  can  not  be  proven... ._  173 

evidence  to  disprove  title  of  plaintiff  not  admissible.  173 

demand  must  be  proven 1  173 


IM.KX.  319 

_  PAGE 

Evidence — Continued. 

defective  demand  not  waived  by  trial .  174 

EXTENT  OF  POSSESSION. 

action  not  defeated  by  proof  that  plaintiff  occupied 

only  house  and  garden 113 

leasing  of  building  without  passage-way  to  and  from 

the  same  considered.. 113 

what  the  law  presumes  in  such  cases 113 

possession  of   a  farm  draws    to  it   the    possession  of 

wood-land  belonging  to  it 113 

lessee  of    land  bordering  a  stream  entitled   to  accre- 
tions  .  __ 114 

even  if  bank  is  a  boundary _ 114 

heretofore  the  proof  must  correspond  with  complaint  114 

now  statute  authorizes  recovering  a  part  only 114 

F 
FORCIBLE  ENTRY. 

the  proof  necessary 174,  175 

that  plaintiff  had  actual  possession 174 

that  defendant  invaded  that  possession 175 

that  the  possession  was  withheld  by  the  defendant..  175 

if  original  entry  unlawful  no  demand  necessary 175 

FORCIBLE  ENTRY  AND  DETAINER. 

statute  of  Illinois  on  the  subject . 52,  60 

the  pui-pose  of  the  action 52 

the  six  causes  of  action  stated 52 

demand — service — return 53 

growing  crops 54 

complaint  and  summons 54 

process  from  different  courts 55 

when  summons  not  served  in  time 56 

service  of  summons  returned .... 56 

trial  in  justice  courts 56 

trial  in  court  of  record 57 

no  formal  pleading  required 57 

trial  ex  parte  and  default 57 

when  plaintiff  entitled  to  hold  premises 57 

when  entitled  to  part  premises 57 


320  INDEX. 

PAGE 

Forcible  Entry  and  Detainer— Continued. 

judgment,  execution  and  costs 57 

when  several  occupants  of  same  premises 58 

result  when  plaintiff  non-suited 58 

when  defendant  recovers  costs 58 

when  judgment  shall  go  for  part  of  premises.. 58 

when  parties  entitled  to  appeal.. 58 

time  allowed  for  appeal 58 

no    writ    of  restitution    issued    for    five    days    after 

judgment 59 

defendant's  appeal  bond 59 

plaintiff's  appeal  bond 59 

new  bond  ordered  by  the  court 59 

former  law  of  forcible  entry  and  detainer  repealed ..  59 

forcible  entry  by  common  law 59 

result  prejudicial  to  the  public  peace 59 

statutes  enacted  to  remedy  the  evil 60 

what  is  disseisin 60 

landlord  has  no  right  to  use  violence 60 

party  in  possession  can  not  be  forcibly  expelled 60 

must  resort  to  the  action  provided  by  law 61 

ejectment,  the  action  to  try  title 61 

forcible  entry  and  detainer   the   means   of  obtaining 

possession 61,  62 

FIXTURES. 

definition  of  fixtures —  223 

landlord's  fixtures 223 

tenant's  fixtures 224 

removing  fixtures 225 

fixtures  that  may  be  removed 225 

gas  fixtures  by  tenant  may  be  removed 225 

they  must  be  removed  when 225 

gas  fixtures  when  not  removed 225 

gas  pipes  may  not  be  removed 225 

flowers  planted  are  fixtures  in  England 226 

trade  fixtures  may  be  removed 226 

criterion  as  to  fixtures  is  the  intention  of  party 226 

a  mirror  built  in  the  wall  is  part  of  the  realty 226 

bar  and  counter  in  a  saloon  trade  fixtures 226 


IXDKX.  321 

PAGE 

Fixtures— Continued. 

cigar  stand  fixtures  in  a  hotel  are  trade  fixtures 227 

distillery  pipes  trade  fixtures 227 

fixtures  left  when  tenant  vacates  become  part  of  the 

realty . 227 

trover  will  not  lie  for  fixtures  annexed 227 

FORFEITURE  OF  LEASES. 

forfeiture  not  favored  by  the  courts. 31 

clear  proof  required  to  warrant  forfeiture :J1 

tenant  should  have  notice  before  declaration  of  for- 
feiture  :\2 

all  forfeitures  odious  to  the  law. 32 

law  must  be  strictly  complied  with 32 

the  landlord  must  indicate  his  intention  to  terminate 

lease 32 

tenant  has  entire  day  to  pay  rent 32 

demand,  notice  and  failure  to  pay  indispensable 32,  33 

possession  of  tenant  that  of  the  landlord 33 

claiming  of  adverse  possession  forfeits  the  term 33 

effects  of  forfeiture  as  to  sub-tenant 33 

FORFEITURE  AT  COMMON  LAW. 

demand  on  a  certain  day  was  required 33,  39 

can  be  made  now  at  any  time  after  default 33 

double  rent  for  willful  holding  over 34 

amount  the  tenant  should  pay  for  use  and  occupation  34 

covenants  made  for  the  benefit  of  the  lessor  only 34 

assignment  without  consent  voidable '       34 

assignment  contrary  to  the  terms  of  the  lease  voidable  34 

case  stated  to  illustrate  forfeiture 34 

forfeiture  prevented  by  tenant  paying  within  ten  days  34 

four  things  necessaiw  to  work  forfeiture 35 

forfeiture  will  not  be  presumed 35 

the  tenancy  must   be  ended  according  to  law ...  35 

what  authorized  landlord  to  expel  tenant 35 

rents  collected  after  re-entry 35 

landlord  may  re-let  premises 35 

rents  after  re-letting 35 

tenant  liable  after  re-entry  by  landlord 36 

conditions  of  a  lease  for  years 36 

21 


322  INDEX. 

PAOB 

Forfeiture  at  Common  Law — Continued. 

estate  ceases  on  condition   broken 36 

landlord  has  the  option  to  forfeit . -.  36 

FORFEITURE,  WAIVER  OF. 

receiving  subsequent  rent  waives  forfeiture 37 

what  acts  of  the  landlord  waives  forfeiture 37 

forfeiture  of  lease  to  three  tenants —  37 

suing  for  subsequent  rents  waives  forfeiture . . .  37 

acceptance  of  security  for  rent  does  not  extinguish 

lease 37 

taking  note  for  rent  does  not  waive  right  of  distress  38 

tender  of  rent  waives  the  forfeiture 38 

FORCE   NECESSARY. 

nailing  up  a  door  is  not  forcible  detainer 68 

a  tenant  refusing  possession  after  termination  of  his 

lease  constitutes  a  constructive  forcible  detainer.  68 

no  actual  force  is  necessary -  69 

originally  actual  force  necessary 69 

any  entry  against  the  will  of  another  is  forcible  in 

legal  contemplation 69 

the  owner  may  enter  peaceably  if  he  can 69 

statute  takes  away  the  common  law  right  of  entry 

by  the  owner 69 

legal  rights,  however  strong,  do  not  warrant  a  violent 

entry    69 

where  entry  allowable  the  detention  alone  is  tortious  69' 
rif  entry  is  forcible  right  of  action  complete  without 

detention 70 

constructive  force  only  is  necessary  in  detainer  cases  70 
the    action    accrues    as    soon    as    detention   becomes 

illegal 70 

taking  possession  by  building  a  fence  is  sufficient..-  70 
right  of  action  vests  in  the  landlord  as  soon  as  the 

tenant's  right  of  possession  ceases 71 

every    entry    against    the    will    of    the    occupant    is 

forcible - 71 

G 

GAS   FIXTURES. 

when  may  be  removed -  -  225 


[NDEX.  323 

PAGE 

Gas  Fixtures— Continued. 

when  may  not  be  removed 225 

time  of  removal 225 

GAS  PIPES. 

gas  pipes  may  not  be  removed 225 

distillery  pipes  are  trade  fixtures 22T 

GROWING  CROPS. 

in    case  of   failure  in  contract  of   purchase  the  pur- 
chaser entitled  to  gather  crops _ 86 

he  has  a  right  to  enter  for  that  purpose 86 

must  pay  rent  before  he  removes  crops 86 

landlord  has  paramount  lien _ 237 

no  lien  except  on  crops _  237 

purchaser  of  farm  takes  it  subject  to  lien 237 

lien  lost  if  no  notice  to  purchaser.. 237 

what  persons  affected  by  lien 237 

GROWTH  OF  THE  ACTION  UNDER  THE  STATUTE. 

a  bird's  eye  view  of  the  action _ .  98 

two  cases  originally 99 

what  a  wrongful  and  what  a  violent  entry 99 

three  cases  under  a  later  statute 100 

now  six  causes  of  action  under  laws  of  1861 100,  101 

a  landlord  getting  the  key  by  fraud  may  be  ousted.  101 

a  tenant  at  will  can  maintain  the  action 102 

the  right  of  immediate  possession  is  the  test 102 

where  party  abandons  premises  he  can  not  maintain 

the  action 102 

plaintiff  must  have  right  of  exclusive  possession 102 

if  possession  is  joint  neither  one  can  gain  exclusive 

possession 102 

right  of   action   rests  alone  in    the  party  entitled    to 

the  possession 102,  103 

H 

HOLDING  OVER  AFTER  TERMINATION  OF  LEASE. 

proof  necessary  to  be  made 178 

relation  of  landlord  and  tenant 178 

right  of  possession  in  landlord ....  L78 


324  INDKX. 

PAGE 

Holding  Over  After  Termination  of  Lease.— Continued. 

termination  of  tenancy 178 

the  demand 178 

that  the  premises  are  withheld. 178 

no  notice  to  terminate  tenancy    required  where  ten- 
ancy expires  by  its  own  terms 178 

HOLDING  UNDER  CONTRACT  OF  PURCHASE. 

purchase — holding  under  contract  of 178 

the  proof  necessary  to  support  this  action 178 

that  plaintiff  sold  the  premises 178 

possession  of  defendant  under  the  agreement 178 

failure  to  comply  with  the  agreement 178 

demand  in  writing 178 

withholding  possession  of  premises  after  demand 179 

holding  after  judgment  of  ouster 179 

proof  necessary  to  sustain  this  action.. 179 

that  plaintiff  is  a  purchaser  at  judicial  sale 179 

the  foreclosure 179 

expiration  of  time  after  redemption 179 

the  demand  for  possession 179 

the  withholding.. 179 

how  deeds  can  be  used  as  evidence  in  such  cases...  179,  180 

for  what  purpose  deed  can  be  used.. 180 

HUSBAND— WIFE. 

when   lessee's    wife   not  a  proper   party  to  suit   for 

possession 190 

when  writ  of  execution  properly  served  against  wife.  191 

when  wife  should  be  joined  with 191 

when  judgment  against  head  of  the  family. 191 

wife  divorced  no  right  in  premises 192 

husband  and  wife  jointly  liable 50 

I 

INCREASED  RENT. 

notice  of   to  tenant 47 

tenant  must  pay  or  quit : .  47 

if  tenant  won't  pay,  landlord  must  oust  him.. 47 

IMPLIED  LEASES. 

implied  from  holding  over 6 

old  lease  renewed  by  accepting  rent 6 


325 


Implied  Leases — Continued. 

implied  lease  presumed    from  silence 6 

IMPROVEMENT. 

making  on  land,  an  act  evincive  of  possession 95,  110 

INJUNCTION. 

injunction  not  to  issue  pending  appeal 152 

INN. 

distinction  between  boarding-house  and 27 

INTENTION. 

as  collected  from  instrument  must  govern  in  con- 
struing contract . . 8 

to  assert  possession,  what  acts  sufficient  presumption 

of . 110,  112 

of    tenant  alone  can   not   rebut   presumption  arising 

from  holding  over 8 

answers  and  intention  shown  by  deeds 168 

J 
JOINT   TENANT. 

can  not  recover  exclusive  possession  against  co-ten- 
ant  107,  108 

can  not  recover  all  the  premises 107.  Kts 

JOINT  OCCUPANTS— JOINT  TENANTS. 

if    occupation    joint   no   one   can   recover    exclusive 

possession M»7 

joint  tenant  can  sue  but  can  only  recover  an  undivided 

interest 107 

a  joint  right  inconsistent  with  an  exclusive  right...  108 

joint  tenant  can  not  deprive  his  co-tenant  of  a  com- 
mon right : 108 

JUDGMENT— WHO  AFFECTED  BY. 

is  only  conclusive  as  to  the  right  of  possession 157 

one  who  did  not  purchase  pendente  lite  can  not    be 

injuriously  affected  by  the  judgment 157 

trespassers  should  pay  interest  on  the  rental  value  of 

premises  withheld 158 

defendant  disclosing  a  good    defense  should  have  a 

new  trial  when  judgment  taken  by  confession...  158 

when  execution  takes  precedence  of  claim  for  rent..  158 


326  INDEX. 

PAGE 

Judgment — Who  Affected  by. —Continued. 

the  form  of  the  judgment  in  such  cases 158 

a  motion  to  quash  too  late  after  the  jury  impaneled 

and  sworn 1 59 

suit  may  be  brought  for  each  month's  rent  when  due.  159 

JUDGMENT  IN  FORCIBLE  ENTRY  AND  DETAINER. 

statutory  provisions -  183 

judgment  for  the  whole  of  the  premises  if  evidence 

warrants 183 

judgment  for  part  only  according  to  the  proof 183 

dismissal  as  to  part — judgment  as  to  part 184 

if  plaintiff  fails  defendant  shall  recover  costs 184 

description  indefinite — judgment  unauthorized 184 

judgni  nt  on  a  description  unwarranted 185 

judgment  conclusive  as  to  possession 185 

conclusive  as  to  the  same  parties  at  the  same  date..  185 
it  must  be  the  same  parties — same  premises  as  prior 

suit 185 

the  successful  party  should  have  judgment  for  costs  185 

JUDGMENT  ON  DISMISSAL  IN  CIRCUIT  COURTS. 

the  circuit  court  on   dismissal   of   appeal  can  award 

a  writ  of  possession 186 

such  judgment  valid  in  collateral  proceedings 186 

judgment  in  forcible  detainer — effect  of 186 

conclusive  only  as  to  matters  determined 186 

not  conclusive  as  to  the  title 186 

conclusive  as  to  possession 186 

judgment  can  be  pleaded  in  ejectment 186 

judgment  confined  strictly  to  matter  determined 187 

conclusive  as  to  existence  of  tenancy 187 

as  to  wrongful  holding  over 187 

judgment  does  not  bar  tenant  from  claiming  rent  as 

a  purchaser  of  title 187 

JUDGMENT  BY  CONFESSION. 

heretofore  sustained  by  the   nisi  prius  courts 187 

now  held  invalid 188 

judgment  of  ouster  by  confession  is  coram  non  judice 

and  void 187 

such  judgments  are  invalid  except  for  debt 187 


INDEX.  327 

_,  PAG  B 

Judgment  by  Confession. — Continued. 

judgment  for  torts  not  valid 187 

the  court  has  only  such  power  as  the  statute  gives..  187 

confession  must  be  for  a  bona  fide  debt  due 189 

no  power  given  to  confess  judgment  for  a  tort 189 

judgment— against  whom  entered 189 

against  parties  in  possession  when  suit  brought 189 

against  lessee  and  sub-tenant. 189 

parties  entering  pendente  lite  may  be  ousted 190 

JUDGMENT  AGAINST  SUB-TENANTS. 

a  sub-tenant  by  statute  liable  in  this  action 190 

judgment  cannot  go  against  a  sub-tenant  in  posses- 
sion before  the  commencement  of  suit  unless  made 
a  party 190 

judgment  against  several  when  part  in  possession  is 

erroneous 190 

in  Kansas  an  officer  has  no  right  to  remove  a  part}* 

unless  he  holds  under  the  defendant 190 

a  wife  not  a  necessary  party  in   a  suit   against  her 

husband 190 

judgment  against  husband  sufficient  to  oust  husband 

and  wife 191 

where  wife  owns  the  property  action  must  be  against 

her. 191 

wife  can  not  set  up  ownership  of  a  dwelling  house 
from  which  her  husband  is  ousted,  to  defeat  the 
action 191 

the  head  of  the  family  ousted  the  whole  family  must 

go  out 191 

wife  loses  all  rights  of  possession  by  decree  of  divorce 

against  her 192 

JUDGMENT  ENTERED  FOR  PART  OF  PREMISES. 

judgment   and   execution    for   such   part  as  may  be 

proven 115 

J  URISDICTION. 

justice  courts  had  sole  jurisdiction  originally.. 135 

now,  courts  of  record  have  jurisdiction  also... 135 

consent  of  parties  will  not  confer  jurisdiction 135 

what  the  plaint  must  show  to  give  jurisdiction 136 


328  INDEX. 

PAGE 

Jurisdiction.— Continued. 

as  between   vender  and    vendee  the   three  elements 

must  combine - 136 

writ  of   error  does  not  lie  from  a  superior   court  to 

review  proceedings 136 

if   complaint   is   materially   defective   judgment  can 

not  be  pronounced 137 

instances  of  mis-description 137 

the  statute  conferring   jurisdiction    must   be  strictly 

pursued — 137 

how  given  to  the  upper  court..   262 

when  appeal  perfected  before  the  clerk 262 

going  to  trial  without  objection  to  defective  affidavit  262 

an  appeal  bond  not   providing  for  payment  of  rent 

useless.. 263 

JURISDICTION  OF  JUSTICE  COURTS. 

a  justice  has  jurisdiction  without  regard  to  the  amount 

of  rent  reserved  in  lease 139 

right  of  possession  is  the  only  question 139 

the  $200  limitation  of  justices  of  the  peace  does  not 

apply  in  these  cases 139 

JURISDICTION  IN  CIRCUIT  COURTS. 

circuit  and  superior   courts   have  a  special  statutory 

power  in  these  cases 139 

if  a  justice  assumes  jurisdiction  where  the  title  of 

real  property  is  in  question  he  becomes  a  trespasser  140 

on  the  appeal  if  the  justice's  transcript  shows  com- 
plaint was  filed  it  is  sufficient 140 

the  appellate  court  has  no  jurisdiction  where  a  free- 
hold is  involved 140 

in  Georgia  a  justice  in  one  county  can  issue  process 

to  another... -  -  -  141 

jurisdiction  in  various  states 141 

K 

KEY — delivery  of,  indicates  acceptance 126 


INTDEX.  ,'J2^ 


L 


LANDLORD'S  LIEN    ON   CROPS. 

landlord's  lien  on  crops  paramount  to  execution  lien  2::i7 

landlord  has  no  lien  except  on  crops 237 

"a  valid  and  first  lien"  refers  to  the  property 2:'>7 

purchaser  of  farm  crops  takes  them  subject  to  lien.  237 
lien  lost  if  crops  remain  without  notice  to  bona  fide 

purchaser .  237 

what  persons  affected  by  lien  reserved  in  lease 237 

LAND  UNOCCUPIED— PROOF   REQUIRED. 

that  the  lands  were  unoccupied 176 

defendant's  entry  without  right 176 

that  the  plaintiff  unlawfully  withholds 177 

actual  possession  claiming  the  fee  is  presumed ......  177 

unoccupied  lands — title  of  presumed  in  owner 177 

LEASE,  THE. 

definition  of  lease ...  2 

what  the  word  includes 2 

who  is  lessor — lessee 2 

may  be  verbal  or  written 3 

LEASES,  WRITTEN. 

may  be  made  by  agent 3 

lease  unsealed  on  verbal  authority 3 

lease  sealed  requires  power  under  seal 3 

duplicates  are  originals _  3 

lease  need  not  be  sealed 4 

if  sealed  must  have  "seal"  or  "sci-oll" 4 

date  of  lease  not  essential 4 

signature  to  lease  indispensable 4 

signature  may  be  in  ink,  pencil  or  stamp.. 4 

infant — lease  by — voidable 5 

accepting  rent  ratifies  lease .  5 

form  of  lease  not  important r> 

dissenting  letter  with  sealed  lease  of  no  effect 5 

LEASES— IMPLIED. 

acceptance  of  rent  by  parties  implies  a  lease 0 

old  lease  renewed  by  accepting  rent 6 

lease  implied  from  holding  over 6 

tenant  holding  over  without  lease  bound (v 


330  INDEX. 

PAGE 

Leases — Implied.  — Continued. 

landlord  has  the  option  if  tenant  holds  over 7,8 

assignee  of  lease  holding  over  is  bound 7 

covenants  in  lease  "run  with  the  land " 7 

where  property  offered  for  rent,  ratified  by  silence..  8 

liability  of  tenant  fixed  independent  of  intention 8 

LEASES— PAROL. 

new  parol  lease  surrenders  the  old  one 8 

verbal  lease  not  exceeding  one  year  valid 8 

after  lease  made  parol  promises  of  landlord  void 9 

parol  lease  for  one  year  to  commence  in  fuhiro  void  9 

void  lease  good  if  ratified  by  parties 9 

parol  license,  after  end  of  lease,  revocable 9,  10 

parol  change,  of  sealed  lease,  invalid.. 9,  10,12 

good  if  for  new  consideration 9,  10 

verbal  lease  by  wife  binds  the  husband 10 

parol  lease  "by  the  year"  is  for  one  year.. 10 

no  notice  needed  to  terminate  an  executed  lease 11 

all  implied  covenants  done  away  by  express  ones...  12 

fraudulent  lease  may  be  rescinded __  12 

an  offer  to  reduce  rent,  void  unless  agreed  to 12 

parol  contract  not  included  in  lease  void 12 

what  may  be  leased 13 

what  consideration  in  leases 13 

may  be  something  beside  money  rent 14 

change  of   payment  to  shorter   time  good  consider- 
ation   41 

agreement  for  a  lease  defined 14 

what  is  a  present  demise 14 

what  is  a  covenant  to  renew , . .  14 

lease  one  year,  with  p  ivilege,  construed 14 

if  one  party  only  bound  it  is  not  a  lease 15 

proposition  to  lease,  not  accepted  may  be  withdrawn  15 

when  lease  commences  if  date  not  fixed 15 

a  lease  for  unlimited  time  conveys  the  fee 16 

LESSEE  MAY  SHOW  ON  TRIAL. 

may  show  his  landlord's  title  expired 167 

may  show  a  conveyance  by  lessor 167 

extent  of  possession  shown  by  deeds 167 


INDEX.  331 

PAGE 

Lessee  May  Show  on  Trial.— Continued. 

that  title  has  been  sold  on  execution.. 107 

boundary  shown  by  deeds 107 

tenant  not  prohibited  from  purchasing  premises 108 

animus  and  intention  shown  by  deeds 168 

that  title  passed  into  other  hands  may  be  shown  by 

tenant . . . : 168 

source  of  title  may  be  shown 168 

plea  of  the  tenant 168 

fraud  or  mistake  an  exception  to  this  rule 168 

LEASES -PROMISCUOUS  POINTS  REGARDING. 

formerly  a  corporation  could  not  lease  without  a  seal  49 

may  now  lease  without  one 49 

guardian  has  no  power  except  through  the  probate 

court 49 

where  land  taken  by  condemnation  proceedings 50 

results  to  tenant 50 

where  the  premises  for  street 50 

rent  of  tenant  abates 50 

when  lease  merges  in  the  fee 50 

husband    and    wife   jointly  and   severally  bound  for 

rent 50 

rights  of  riparian  proprietor 50 

rights  of  owner  over  land  acquired  by  accretion 50 

what  appurtenances  include 50 

it  does  not  include  property  disconnected 51 

court  will  bind  appraisers  if  appraisers  refuse  to  act  51 
the  covenants  of  a  lease  by  partnership  are  joint  and 

several 51 

suit  may  be  brought  against  one  or  all  of  the  persons  51 

LESSEE— POSSESSION  UNDER. 

person  occupying  with  or  for  the  tenant  must  go  out 

with  him 80 

secret  arrangement  between  tenant  and  sub-tenant..  80 
a  person  occupying  with  tenant  can  not  be  considered 

a  sub-tenant 80 

LODGERS. 

who  are 27 


332  INDEX. 

PAGE 

Lodgers. — Continued . 

distinction  between  lodger  and  tenant 27 

no  interest  in  the  real  estate 28 

when  lodger  becomes  a  tenant *        28 

lodgings  and  extras — lien  for. __ 29 

letting  lodgings  is  not  sub-letting 27 

when  lodger  liable  for  injuries _ .      27,  31 

lodgers — inmates — tenants 31 

see  rooms  and  lodgings 25 

M 

MISTAKE,  ARTIFICE  AND  FRAUD. 

tenant  misled  by  lessor  can  plead  fraud 16& 

pleas  available  for  tenant . 170,171 

the  settled  rule  as  to  the  tenant's  plea 172 

officer  ousting  from  wrong  premises  liable. 98 

N 

NOTICE. 

no  notice  to  quit  necessary  if  possession  was  obtained 

illegally 126,  127 

no  notice  to  quit  required  where  tenant  or  sub-tenant 

holds  over.. _ 127 

no  notice  to  quit  required  where  no  tenancy 127 

no  notice  to  quit  required  where  the  tenant  repudi- 
ates landlord's  title 127 

where  ten  days'  notice  given  the  tenant  can  pay  dur- 
ing ten  days 127 

the  legislature  intended  to  give  tenant  ten  days' 
to  pay 128 

if  tenancy  not  terminated   the  action  will  not  lie 128 

a  mere  occupant  for  eighteen  years  entitled  to  notice 

to  quit. 129 

if  occupant  holds  by  consent  of  owner  be  is  entitled 

to  notice  to  quit. 129 

purchaser   at   sheriff's  sale   must  make   demand   for 

possession  before  suit 129 

acts  of  parties  may  terminate  a  lease  without  notice  130 

notice  to  terminate  a  yearly  tenancy 131 

when  said  notice  should  be  given.. 131 


i.\i>KX.  333 

Notice. —Continued. 

the  day  mentioned    must  correspond   with    the  com- 
mencement of  the  tenancy 13] 

must   be   the   anniversary  of   the   commencement  of 

the  lease :J,1 1 

what  is  evidence  of  service _  134 

what  is  proof  of  termination  of  tenancy 134 

NOT  GUILTY. 

plea  of  not  guilty  good 151 

NUISANCE. 

renting  premises  in  a  dangerous  condition  a 211 

landlord  liable  for  nuisance  when.. .  211 

o 

OBJECTIONS. 

must  be  taken  in  court  below 160 

otherwise  if  the  court  has  no  jurisdiction 160 

P 

PENALTY  OF  APPEAL  BOND. 

must  secure  costs,  accrued  rents  and  rent  to  accrue  264 

where  appeal  perfected  in  justice  courts 264 

appellee  bound  to  follow  appeal 264 

when  appellee  can  dismiss  appeal 264 

effect  of  giving  new  appeal  bond. 264 

the  former  bond  thereby  extinguished- . 264 

amendment  of  appeal  bond  in  discretion  of  the  court  264 

if  justice  fails  to  take  sufficient  appeal  bond — liable  265 

PLEADINGS. 

summons  from    justice 149 

summons  from  court  of  record..  _ 149 

returnable  when i 149 

publication _ 149 

jury  trial  before  justice i_ 150 

trial  in  court  of  record 150 

no  written  pleadings  other  than  complaint  necessary  151 

plea  of  not  guilty  always  good  defense 151 

what  it  puts  in   issue 151 

allegations  in  the  declaration  if  not  denied  stand...  151 


334  INDEX. 


PAGE 


Pleadings. — Continued . 

defects  taken  advantage  of  by  plea  in  abatement...  151 

judgment  on  plea  in  abatement  final ..  152 

what  the  tenant  can  plead  as  defense 152 

injunction  will  not  issue  pending  appeal   152 

bringing  action  of  forcible  entry  and  detainer  does 

not  deprive  plaintiff  of  other  remedies 152 

disclaimer  by  plaintiff  may  be  pleaded 160 

PLEADINGS— AMENDMENTS. 

defects  in  proceedings  should  be  found  at  first 153 

if  defective  amended  instanter 153 

the  proper  course  as  to  amendments 153 

PLEAS. 

no  plea  but  not  guilty  required ...    153 

all  matters  and  defense  under  this  plea 153 

requirements  of  the  statute  strictly  complied  with  154 

PRACTICE. 

papers  amended  as  fully  as  in  other  cases. 154 

appeal  bond  may  be  amended 154 

courts  fix  the  time  within  which  to  be  amended 154 

all  amendments  in  discretion  of  the  court 155 

every  defective  appeal  bond  may  be  amended 155 

objecting  parties  should  take  a  rule  to  remedy  defects  155 

if  complaint  defective  a  motion  to  quash  is  proper  _.  155 

motion  should  be  made  before  trial 155 

at  least  at  an  early  stage  of  the  suit... 155 

the   court  disregard    equity   and   enforces  only  legal 

rights -  156 

judgment  for  rent  or  damage  improper 156 

defendant's  possession,  must  be  shown 1 56 

one  suit  pending  does  not  prevent  the  commencement 

of  another --  156 

parol  proof  can  not  be  heard  to  contradict  the  record 

in  foreclosure 156 

plaintiff   can  prove   that   he   was   possessed    of  part 

of  the  premises  claimed -  -  156 

proof  must  conform  to  the  complaint.. '.-.  157 

refusal  to  permit  amendment  can  not  be  assigned  for 

error 1 57 


INDEX.  335 

PAGE 

Practice,— Continued. 

a  variance  between  the  judgment  and  verdict  fatal.  157 

POSSESSION. 

what  possession  necessary  for  plaintiff 109 

plaintiff  must  prove  peaceable  possession 109 

must  show  actual  possession 109 

such  as  the  fee  simple  title  draws  to  it  is  not  suffi- 
cient.   109 

does  not  require  pedis  possessio  to  support  the  action  110 

actual  possession  of  a  farm  will  include  an  unenclosed 

wood  lot 110 

possession  must  be  in  plaintiff  at  the  time  he  brings 

suit 110 

fences,  buildings  and  cultivation  indicate  possession    95.  110 

keeping  goods  on  the  premises  sufficient 110 

the  possession  in  all  cases  must  be  bona  fide  to  sup- 
port the  action 110 

temporary  absence  does  not  destroy  possession.. 110 

plowing  one-half  day    on    land    is  not  sufficient  pos- 
session  110 

sufficient  possession  shown  by  acts 95 

delivering  a  key  to  a  person  other  than  the  landlord 

does  not  give   possession Ill 

where  an  officer  of  a  corporation  takes  possession  it 

is  that  of  the  company 111 

if  actual  possession  relied  on  it  must  be  fully  proven  1 1 1 

it  must  be  open,  exclusive  and  public Ill 

such  possession  as  men   generally  employ, Ill 

twenty  years'    possession    claiming   title   is  sufficient 

possession. .  Ill 

placing  goods   by    landlord    into   vacant   premises  is 

taking  possession 112 

POSSESSION— CONSTRUCTIVE. 

a  tenant  in  taking  the  landlord's  goods  up-stairs  is  a 

surrender  of  possession LIS 

preparing    to   occupy   house    and    leaving   with    the 

intention  of  returning  is  possession 112 

conflicting  claims  for  possession  considered 112 

what  acts  show  abandonment  of  possession 1K> 


336  INDEX. 

PAGE 

Possession— Constructive. — Continued. 

-preparing  to  cultivate  shows  possession 113 

a  constructive  and  scrambling  possession  is  not  suffi- 
cient  .- 113 

POSSESSION— COLLUSIVE. 

collusive  possession  will  not  sustain  the  action 159 

notice — defects  in,  not  waived  by  appearance 160 

disclaimer  by  plaintiff  may  be  pleaded  by  defendant  160 
judgment  should  not  be  rendered  against  several  de- 
fendants when  one  in  possession 160 

on  a  ten  year  lease  tenant  should  pay  taxes 160 

in  appeal  cases  objections  not  taken  in  court  below 
disregarded,  otherwise  if  the  court  has  no  juris- 
diction  160 

POSSESSION  MUST  BE  RESTORED. 

tenant's    possession    must     be    restored    to    landlord 

before  he  can  assail  title 166 

deeds  may  be  introduced  to  show,  the  extent  of  pos- 
session  166 

title  immaterial  in  these  cases •_. 166 

accepting  lease  admits  the  landlord's  title 166 

PROCEEDINGS  FOR  DISTRESS. 

description  of  premises  in  distress  warrant  is  sur- 
plusage  -31 

landlord  limited  to  claim  made. 231 

warrant  is  summons  and  declaration 236 

proof  offered  by  the  defendant 236 

what  the  court  must  determine 231 

in  distress  cases  lease  need  not  be  filed 232 

no  declaration  is  necessary 232 

if  defendant  pleads  no  rent  in    arrears  only  he  can 

not  recover  damages 232 

set  off  or  notice  under  the  general  issue  necessary  to 

recover  damages 232 

where  there  is  no  rent  due  replevin  will  lie 232 

landlord  can  not  distrain  goods  of  tenant's  assignee.  232 

rent  must  be  certain  and  specific  to  authorize  distress  232 

landlord  can  not  apportion  rent 232 

evidence  as  to  crops 233 


index".  337 

PROPERTY  SUBJECT  TO  LEVY. 

only  personal  property  subject  to  distress. 334 

landlord's  lien  is  by  virtue  of  the  common  law 234 

statutes  regulate  but  do  not  interfere  with  the  right  234,  235 

time  within  which  distress  will  lie 235 

landlord  may  distrain   without    that    right  being  re- 
served in  lease 335 

who  may  distrain  for  rent 335 

if  tenant   abandon    premises    landlord    may    distrain 

for  rent  not  due 335 

R 

RE-ENTRY   BY    LANDLORD. 

re-entry  by  landlord  may  determine  lease 221 

when  re-entry  does  not  stop  rents 221 

the  mode  of   re-entry  considered 222 

accruing  rent  and  damages  considered 222 

RENT— INCREASED   RENT. 

tenant  presumed  to  accede  to  new  terms  by  remain- 
ing   _ 200 

tenant  not  bound  unless  he  accede  to  new  terms 201 

if   tenant  remains  and   refuses  to  pay  rent  landlord 

must  put  him  out...    .- 201 

silence  of   tenant  implies  consent  to  new  terms 201 

no  such  presumption  where  he  refuses  to  pay 201 

tenant  having  right  to  abandon  will  waive  his  right 

by   remaining 201 

where  a  landlord  fails  to  repair  as  agreed  the  tenant 

may  abandon  premises 202 

lessor  can  not   collect  rent  where   he  fails  to   repair- 
as  agreed  and  tenant  goes  out 202 

REPAIRS. 

repairs  to  be  made  by  landlord,  no  time  stated,  may 

be  made  in  a  reasonable  time 203 

tenant  should  notify  him  to  repair 204 

if    landlord    agrees   to  repair   at   a  certain    time    no 

notice  required -  -  204 

repairs  before   the  commencement  of  the  term   is  a 

condition  precedent  to  the  payment  of  rent 204 

22 


338  INDKX. 

PAGE 

Repairs — Continued. 

tenantable  repairs  defined -  204 

REPAIRS -LANDLORD'S  DUTY  AS  TO. 

landlord  does  not  insure  the  premises  to  be  in  healthy 

condition -  205 

not  bound  to  repair  unless  required  to  do  so  by  the 

lease 205 

not  liable  for  damage  when  defects  arise  during  ten- 
ancy    205 

landlord    liable    to    tenant    for  failure    to   repair   as 

agreed - . 205 

landlord  renting  a  store  in  a  building  must  keep  the 

building  in  safe  repair ... 206 

landlord    not   bound    for   repairs   made    by  order   of 

lessee —  206 

landlord   failing   to   keep    roof    in   repair   as  agreed 

liable  for  damages 206 

rent  does  not  stop  while  receiving  repairs... 206 

as  a  general    rule  a   tenant   is   liable    for  injuries  in 

consequence  of  repairs  not  being  made 207 

tenant  must   take  premises  as   he   finds  them  unless 

otherwise  agreed 207 

if  landlord  fails  to  make  agreed  repairs  tenant  may 

make  them  and  charge  the  landlord 207 

RENT— DISCHARGE   FROM. 

tenant  can  not  defend  against  unless  evicted 253 

decree  of  sale  against  landlord,  not  an  eviction 253 

landlord  can  not  apportion  rent  by  his  own  wrong.  253 

accrued  rent  collected  on  note  of  ousted  tenant ,253 

eviction  under  paramount  title  discharges  rent 253 

eviction  of   part   premises   by  a  stranger   apportions 

rent... -  253 

eviction,  or  no  eviction,  depends  on  facts  before  the 

jury -  253 

tenant  can  not  complain  until  evicted  whether  land- 
lord has  title  or  not 254 

eviction  cases  considered 254 

failure  to  repair  does  not  amount  to  eviction 254 

threats  by  landlord  may  amount  to  eviction 255 


INDEX.  330 

RESTITUTION. 

definition  of  the  term, 193 

no  writ  to  issue  until  time  for  appeal  expires.. 193 

under  a  decree  the  plaintiff  will  be  entitled  to  a  writ 

of  possession  or  he  can  sue  in  forcible  detainer.  194 

these  two  are  concurrent  remedies 1 94 

power  of  officer  in  executing    writ  of  possession 195 

can  remove  defendant    and  his  property... 195 

if  he  Causes  unnecessary  damage  he  is  liable 194 

ROOMS  AND  LODGINGS. 

concerning  tenements  only.- 25 

agreement  to  supply  furniture 25 

part  of  the  rent  contract 25 

agreement  for  lodgings  for  more  than  one  year  should 

be  in  writing. 25,  27 

tenancy  does  not   exist   between    landlord  and  guest 

or  boarding-house  keeper  and  guest 26 

a  lodger  acquires  no  interest  in  real  estate 26 

what  are  the  privileges  of   lodgers 26 

the  liabilities  of  lodgers 26 

can  not  quit  lodgings    without  proper  notice 26 

each  apartment  considered  a  distinct  house... 26 

rule  where  owner  lives  in  house 26 

rule  as  to  outer  door 26 

a  bailiff  may  break  open  an  inner  door ~'7 

lodger  not   liable  for  use  and   occupation    unless   lie 

enters  the  lodgings 27 

letting  lodgings  is  not  under-letting 27 

distinction  between  a  boarding-house  and  an  inn 27 

the  liabilities  of  a  keeper  of  lodging  house. 27 

who  are  lodgers 27 

distinction  between  lodger  and  tenant... 27 

definition  of  the  terms  of  lodger  and  tenant 28 

the  rule  as  to  control    over  the  house 28 

lodger  no  interest  in  real  estate 28 

if  a  lodger  leases  apartments  he  becomes  a  tenant..  28 

tenants'    exclusive  control  of  their  rooms -  v!8 

the  rule  as  to  control  of    premises  by  landlord 29 

lien  on  baggage  for  board,  lodgings  and  extras 29 


li-lO  i.M)i:x. 


pai; 


Rooms  and  Lodgings.— Continued. 

effect    of    the    landlord    retaining    the    key  without 

objection -  -  -  29 

the  care  required  of  a  boarding-house  keeper 30 

liable  for  negligence  of  himself  and  servants...   30 

liability  of  a  lodging-house  keeper  not  the  same__.  30 

the  implied  condition  in  letting  a  furnished  house..  30 

an  exception  to  the  general  rule 30 

a  general  hiring  of  lodgings  not  by  the  year 30 

weekly,  monthly  and  quarterly  rents 30 

when  lodgers  responsible  for  injuries 31 

what  necessary  to  create  the  relation  of  landlord  and 

tenant -   -. 31 

who  are  inmates  and  who  tenants 31 

the   word  "landlord"  defined ;)1 

S 
SERVICE   OF  THE   DEMAND. 

when  it  must  be  served 117 

must  be  made  before  suit  commenced 117 

admitting    demand    in    evidence   does   not    presume 

service 117 

demand  by  agent  should  disclose  agency IIs 

must  be  served   by  plaintiff   or  some  one  authorized 

by  him .- -  118 

written    demand    should    be  delivered    to  defendant 

himself 118 

what  proof  necessary  of  demand 11s 

when    demand    and    refusal    to  surrender    must    be 

proven. 11s 

what  demand  a  mortgagee  must  make IIs 

mortgagees  must  make  demand  before  commencing 

suit --- -  118 

form  of  demand 375,  2TD 

SET-OFF  AND  RECOUPMENT. 

liquidated  demands  may  be  set-off 215 

a  surety  for  rent  can  plead  any  matter  of  discharge  215 
a  judgment  for  rent  satisfied  of  record  bars  any  future 

action  of    rent  which  had    accrued    before    that 

time - -  -  -  215 


INDEX.  .'Ml 

ski -oFi'  and  Recoupment— Continued. 

if  tenant  proves  in  access  of  the  amount  agreed   on 

he  can  not  set  it  off  against  the  rent 215 

tenant  can  set-off  his  damages  against  rent 215 

he  can    recoup  where  the  demands  grow  out  of    the 

same  transaction... 216 

if  landlord  fails  to  repair  the  tenant  may  recoup  from 

the  rent •„>  i  g 

the  tenant    can    recoup  damages  sustained    by  leaky 

roof  where  suit  for  breach  of  lease 217 

SEWER  GAS— DEFECTIVE  PLUMBING. 

landlord  not  bound  for  defects  in  plumbing 210 

tenant   can    rescind    lease    on   account  of    fraudulent 

representations 210 

if  he  remains  in  possession  he  must  pay  the  rent...  211 

if   premises  rented    with    sewer   gas    in    them  tenant 

must  go  out  or  pay  rent... 211 

the  law  does  not  require  the  landlord  to  make  premi- 
ses tenantable 211 

in  the  absence  of  an  agreement  to  that  effect  land- 
lord not  bound  to  keep  the  buildings  in  repair..  211 

if  landlord  fail  to  repair  as  agreed  tenant  may  recoup 

his  damages _ .  211 

if  landlord  agrees  to  make  repairs  the  tenant  after 
notice  may  make  them  and  charge  the  expense 
to  the  landlord 211 

landlord  not  liable  for  damages  from  sewer  gas  unless 

he  rented  the  premises  in  dangerous  condition..  211 

SUB-TENANTS. 

a  sub-tenant    entering  pendente  titc   dispossessed 77 

statute  contemplates  an  action  against  sub-tenant 77 

a  sub-tenant  not  entering  pendente  lite  must  be  made 

a  party T ; 

if  lease  forfeited  an  action   lies  against  a  sub-tenant 

even  if  landlord  consented  to  sub-letting 78 

whenever   suit    will    lie    against    tenant    it    will    lie 

against  sub-tenant 78 

if  lease  forfeited  the  right  of  the  sub-tenant  is  gone.  78 


342 


Sub-Tenants.— Continued. 

if  first  tenant  holds  over  second  tenant  must  sue  for 

possession . . T^ 

demand  for  possession  must  be  made  after  termina- 
tion of  the  tenancy . . 79 

remedy  where  tenant  holds  over  after  expiration  of 

his  term 79 

where  the  landlord   excludes   the   tenant  during  his 

absence  the  tenant  will  be  restored  by  this  action  79 

one  suit  can  not  be  maintained  against  several  per- 
sons who  hold  in  severalty . 79 

in  some    cases  all   may  be  joined  but  the  judgments 

must  be  several 79 

suit  to  recover  rent  must  be  in  the  same  capacity  as 

that  in  which  the  lease  was  signed 79 

separate  suits  will  not  lie  for  several  sums  past  due  80 

SUB-TENANTS   AND  THEIR  RIGHTS. 

provisions  against  sub-letting  sustained  by  the  courts  47 

provisions  for  the  benefits  of  the  lessor  alone 47 

he  can  waive  the  breach 47 

accepting   rent  from  sub-tenant  does  not  release  the 

tenant 47 

tenant  can  not  sub-let  longer  than  his  term 47 

notice  of  increased  rent  to  sub-tenant 47 

where  assignment  restrained  by  the  agreement  in  the 

lease _ 47 

co-partnership  with  the  tenant  is  not  a  subletting...  48 

SURETIES  ON   APPEAL   BONDS. 

surety  on  appeal    bond    may  be    sued    without    first 

suing  tenant.. 268 

the  undertaking  of   surety  may  be  collateral 269 

a  person  signing  a  lease  may  be  shown  to  be  surety 

instead  of  joint  lessee 269 

not  allowed  unless  landlord  has  notice 269 

bonds  must  be  in  writing 269 

statutory  provisions 269 

bond   must  be  made  by  appellant 269 

sureties  on  old  bond  discharged  by  taking  a  new  one  270 

changes  in  bond  by  lessor  will  discharge  surety 270 


[NDEX.  343 

Sureties  on  Appeal  Bonds.— Continued. 

what  changes  by  lessor  discharge  surety 270 

a    surety  not    entitled    to    notice  of    default    of    his 

principal... 271 

any  defense  of  the  lessee  will  avail  his  surety 271 

SURETIES— THEIR   DEFENSE. 

a  surety  failing   to  make  his  defense  at  law  can  not 

he  heard  in   chancery 272 

if  a  creditor  deprives   the  surety  of   his  defense    the 

surety  can  plead  it _  272 

whatever    will    discharge    on  a  contract    in    law    or 

equity  can  be  pleaded  by  the  surety  as  a  defense  27L' 

the  old  rule  that  no  specialty  can  be  avoided  but  by 
an  instrument  of  equal  solemnity  has  been 
modified .  272 

defenses  in  actions  upon  contracts  and  plea  of  payment 

allowed 2?','.  273 

modifications  by  parol— no  defense  to  a  sealed  instru- 
ment, nor  can  a  written  modification  not  sealed 
be  pleaded 278 

grounds  of  defense  not  pressed  upon  the  hearing  are 

waived 278 

see  co-sureties 271 

SURRENDER    OF   LEASES. 

tenant  can  not  surrender  lease  before  the  expiration 

of  the  term  and  relieve  himself  from  rent 24 

abandonment  of  premises  will  not  discharge  from  rent  24 

an  act  of  the  landlord  rendering  the  lease  unavailing 

discharges  from  rent 24 

one  party  can  not  surrender  a  lease  without  concur- 
rence of  the  other 24 

stipulation    that   a    tenant   may  continue   to   occupy 

does  not  bind  him 24 

case  stated  on  a  privilege  for  five  years 25 

SUSPENSION   OF  RENT-DAMAGES. 

rent  is  compensation  for  use  of  land... 256 

when  use  of  land  taken  away  he  need  not  pay 256 

the   landlord's   intention    must    be   clear   in    eviction 

cases 257 


344  [NDEX. 

PAGE 

Suspension  of  Rent — Damages-.  —Continued. 

eviction  discharges  all  accruing  rent 257 

damages  for  eviction  can  be  recovered  by  tenant...  257 

the  rule  of   damages  in  such  cases 257 

damages  in  case  of  eviction  by  paramount  title 257 

crops — value  of  if  tenant  evicted 258 

T 
TAXES. 

ten  years  tenant  must  pay  taxes 160 

tenant  for  life  must  pay 1  GO 

TENANCY.  KINDS  OF— TENANCY  AT  WILL. 

who  is  a  tenant  at  will 16 

parties  moving  in,  without  agreement... 16 

party  moving  on  lands  without  terms _  16 

getting  possession  under  agreement  for  a  lease 16 

tenancy  at  will   not  assignable 16 

at  common   law  required  no  notice  to  terminate 16 

statutory  notice  required  to  terminate 17 

an  assignment  terminates  the  tenancy  at  will 17 

TENANCY  AT  SUFFERANCE. 

one  who  holds  over  without  lease 17 

has  no  estate  that  he  can  transfer ..  17 

permission  to  occupy  without  agreement 17 

a  mortgagor  after  foreclosure 17 

tenants  per  outer  vie  after  the  death  of  cestui  que  vie  17 

tenants  for  years  whose  terms  have  expired 17 

tenants  at  will  whose  term  has  ended 17 

under-tenants  holding  over 17 

at  common  law  not  liable  for  rent ._  18 

tenancy  at  sufferance  terminated  at   the  pleasure  of 

landlord _  18 

TENANCY  BY  THE  MONTH. 

party  entering  under  void   lease  and    paying   by  the 

month  is  a  tenant  from  month  to  month 18 

he  is  entitled  to  a  monthly  notice  to  quit 18 

a  letting  without  time  payable  monthly  is  a  tenancy 

from  month  to  month 18 

time  of  paying  indicates  the  term 18 


INK E X  .  .".4  ."» 

TENANCY  BY  THE  YEAR. 

reserving  annual  rent  makes  ;i  yearly  Lease 19 

animal  rent  with  no  time  of  payment  is   due  at  the 

end  of  the  year 19 

a  general  letting  without  time  is  from  year  to  year  19 

formerly  six  months  notice  required  to  end  a  yearly 

tenancy I '.) 

sixty  days  notice  under  the  statute  sufficient .       19.  30 

a  tenant  holding  over  after  the  termination  of  a  writ- 
ten lease  will  be  compelled  to  pay  the  same  rent 

as  required  by  the  lease... 19 

tenant  can  not  abandon  lease  and  avoid  paying  rent  19 

remaining    two    years    and    raising    crops    a   yearly 

tenancy 20 

TENANCY  FOR  LIFE. 

tenancy   for   life   created    by  instrument   under   seal 

only 20 

no  particular  form  of  words  required  to  create 20 

TENANT'S  REMEDY. 

tenant  may  abandon  premises  for  landlord's  fraud..  19*3 

may  sue  landlord  for  breach  of  his  covenant 197 

may  make  repairs  and  deduct  from  rent 197 

may  abandon  premises  on  account  of  landlord's  fail- 
ure to  repair 197 

rent  in  advance  can  not   be  collected  without  agree- 
ment to  that  effect. 191 

sub-tenant  not  liable  for  rent  of  original  lessee 198 

tenant    lias    no  relief   against   covenant   to  pay  rent 

unless  by  the  terms  of  the  lease 198 

defense  available  to  the  tenant 198 

defendant  appearing    without  objection    to  the   sum- 
mons waives  its  defects 198 

tenant's  defenses  enumerated 199.  200 

defendant     may     set    up    that    plaintiff     disclaimed 

possession 1 99 

TERMINATION   OF   SUB-LEASE. 

sub-tenant  may  hold  premises  after  lease  terminates  48 

in  case  the  landlord  alienates  the  reversion 48 

who  can  sue  in  case  of  alienation 49 


346  INDEX. 

PAGE 

Termination  of  Sub-Lease.— Continued. 

landlord  can  not  sue  after  he  parts  with  the  right  of 

possession 49 

lessee  alone  must  bring  the  action 49 

where  tenant  must  sue  former  tenant  for  possesion.  49 

TERMINATION   OF   TENANCY. 

how  long  tenant  can  remain  in    possession 119 

actual  lease  is  forfeited  or  time  expires 119 

attorning  to  a  stranger  forfeits  lease 119 

denying  landlord's  title  forfeits  lease 119 

no  notice  necessary  where  lease  has  expired 119 

if   landlord    terminates  lease    for  breach  of   same  he 

must  give  notice 120 

a  notice  is  necessary  where  tenancy  is  indefinite 120 

time  of  notice  governed  by  the  nature  of  the  tenancy  120 

ten  days  notice  to  quit  where  lease  violated 120 

a    yearly    lease    terminated    by  sixty-day    notice    in 

writing 120 

tenancy   less   than    a   year,  as    by  the    month,  by   a 

thirty-day  notice 121 

a  void  yearly  lease  is  a  monthly  renting 121 

TITLE— TENANT  CAN   NOT  DISPUTE  LANDLORD'S. 

tenant  cannot  dispute  his  landlord's  title 163 

tenant  estopped  from  denying  his  landlord's  title 164 

title  of  premises  not  in  issue 164 

tenant   not   permitted   to   betray  his   landlord's    pos- 
session  165 

,  jury  can  not  consider  title 165 

deeds  may  be  introduced,  but  not  to  show  title 165 

tenant  by  entering  premises  acknowledges  the  land- 
lord as  owner. - 165 

an  under-tenant  bound  by  the  same  rule 165 

neither   tenant   nor   his   assignee    can    dispute   land- 
lord's title 166 

TRADE   FIXTURES. 

what  are  trade  fixtures 225,  226 

bar  and  counter  in  a  saloon 226 

cigar  stand  in  a  hotel ---  227 

distillery  pipes  are 227 


INDEX.  :',4  7 

Trade  Fixtures.— Continued. 

intention  of   tenant  the  criterion.. 22ti 

TWO   REMEDIES  AT  THE   SAME  TIME. 

law  ami   chancery  proceedings  pursued  at  the  same 

time 1 G2 

satisfaction  of   either  judgment  bars  the  other 162 

action   in   forcible    entry  and   detainer  does  not   bar 

chancery  proceedings _ h;;{ 

u 

USE  AND  OCCUPATION. 

the  action  not  sustained  unless  the  relation  between 

landlord  and  tenant  exists 212,  213 

a  contract  may  be  express  or  implied 212 

occupying  after  notice  to  pay  rent  tenant  liable  for 

use  and  occupation. 212 

it  may  lie  against  the  occupant  after  contract  of  pur- 
chase is  rescinded ' 212 

occupancy  under  a  contract  for  rent  for  a  year  com- 
mencing in  futuro 213 

if  contract  is  void  yet  the  action  will  lie 213 

the  rental  value  will  be  fixed  at  the  time  the  liabil- 
ity arises. 213 

holding  over  under   a  parol   lease   makes  the  tenant 

liable  for  use  and  occupation 213 

V 

VARIANCE. 

between  judgment  and  verdict  fatal 184,  157 

between  complaint  and  judgment  fatal 184,  185 

between  description  in  lease  and  correct  description,  the 
complaint  should  disregard  the  description  in  the 
lease .• 145 

VENUE. 

anywhere   in   the   county   wherein   the   premises   arc 

located 137 

may  issue  to  a  different  county  when;  defendant  re- 
sides   137 

generally  the  venue  is  where  the  land  is  located 137 

the  complaint  is  jurisdictional 138 


3  £8  INDEX. 

PAGE 

Venue. — Continued. 

if  the   justice    has  no   jurisdiction  the    higher   court 

has  none ... 138 

the  complaint  must  be  in  writing 138 

it  can  not  be  filed  on  the  day  of   trial 138 

complaint  must  be  made  before  summons  issued 139 

these  matters  can  not  be  changed  by  the  parties 139 

VERDICT. 

the  jury  must  sign 194 

in  Illinois  and    Indiana  all  the   jury  must   sign    the 

verdict 196 

unknown  fraudulent  sub-tenant  ousted  under  writ-.  195 

they  are  presumed  to  occupy  under  the  defendant..  196 

circuit  court  on  appeal  may  remand  to  justice  of  the 

peace 196 

VIOLENCE. 

violence  forbidden  and  remedy..   60-61 

w 

WAIVER. 

waiver  of  forfeiture 37 

what  tenant  may  prove   on  trial 167 

who  may  maintain  the  action 92-98 

WARRANT,  THE— ITS  OFFICE. 

warrant  is  a  summons  and  declaration 236 

what  the  declaration  should  contain 236 

what  the  defendant  may  plead 236 

proof  that  may  be  offered  by  the  defendant 236 

unauthorized  acts  of  bailiff  do  not  render  the  land- 
lord liable  in  distress  cases 236,  237 

WITHHOLDING  WRONGFULLY. 

facts  proven*  to  sustain  a  wrongful  withholding 176 

possession  of  defendant -  176 

peaceable  possession  obtained  by  the  plaintiff 176 

the  demand  made  * 176 

the  withholding  after  demand 176 

WRONGS— TWO  IN  ONE  NAME. 

forcible  entry  and  forcible  detainer  distinguishable..  64 
statute  generally  regulated  the  degree  of  force  neces- 
sary to  support  the  action.. 64 


index.  :;4:» 

PAOl 

Wrongs — Two  in  one  Name.— Continued. 

forcible  detainer  defined *>4 

forcible   detainer   may   follow    peaceable   or   forcible 

entry . 64 

statutes  are  in  derogation  of   the   common    law  and 

must  be  strictly  pursued 04 

action  abates  upon  tbe  death  of  defendant 65 

two  wrongs  treated  together 65 

the  entry  was  an  offense  at  common  law 65 

the  detainer  punishable  bylaw 65 

in  Arkansas  the  forcible  entry  and  detainer  is  a  tort  65 

the  remedy  to  protect  actual  possession  only 65 

WRIT  OF  POSSESSION. 

for  other  premises  no  justification  of  eviction 98 

must  be  executed  against   party  to  suit 190 

or  against  one  entering  pendente  lite 190 

when  properly  served  against  husband 191 

WRIT   OF  RESTITUTION. 

when  properly  served  against  husband  alone 191,  H»2 

can  not  be  issued  until  when.. 193 

can  be  served  as  other  writs.. 195 

against  whom  must  be  executed. 189,  195 

circuit  court  may  order  upon  dismissal  of  appeal...  186 

form  of - 284 


I.NDKX    TO    FORMS  351 


INDEX  TO   FORMS. 


PAGE 

Demand  for  possession 27") 

Notice  to  quit  by  an  agent 275 

Demand  by  an  attorney 275 

Notice  to  quit  by  the  owner 275 

Notice  to  terminate  weekly  tenancy 276 

Ten  days  notice  to  quit  for  default 270 

Another  form  of  notice  to  quit _  _ 277 

Notice  to  quit  for  landlord  by  the  agent 277 

Landlord's  five  days'  notice 278 

Sixty  day  notice  to  terminate  tenancy.. 27!t 

Another  form  of   the  same 27!» 

Sixty  day  notice  to  be  served  by  an  agent 279 

Thirty  day  notice  to   terminate   a   tenancy  from  month  to 

month 280 

A  demand  for  possession  disclosing  the  agent 280 

Written  authority  to  agent  or  attorney 280 

Written  authority  to  attorney  to  sue,  etc 281 

Complaint  in  forcible  entry  and  detainer  in  Illinois.. 281 

Summons  in  forcible  entry  and  detainer 282 

Appeal  bond  in  forcible  entry  and  detainer... 283 

Writ  of  restitution  . .'. 284 

Agreement  for  a  lease 285 

Agreement  not  to  obstruct  lights 285 

To  renew  a  lease 285 

Agreement  of  surety  in  lease 285 

Agreement  to  let  furnished  apartments 286 

Form  of  guaranty  of  rent,  etc 287 

Assignment  and  acceptance  of  lease 287 

Assignment  of  lease 288 

Consent  to  assignment 288 

Assignment  by  lessor _ 288 

New  lease  with  full  powers 289 

Skeleton  lease 297 

Short  country  lease 295 


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